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When is Probate Required?

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Estate Planning is an important step for every single person regardless of their personal and financial situations to help their loved ones live a secure life even after they are gone. Creating an estate plan that can be executed efficiently, therefore, is vital. Most often, this includes keeping the probate process at the forefront of your mind.

Probate is the process that determines how the deceased’s property is distributed and settled after their death. The process can be very expensive, time-consuming, and emotionally draining for the loved ones who go through it.

Knowing exactly when probate is required can help you, your loved ones and your executor create a better estate plan and bring peace of mind to everyone involved.

When is Probate Required?

  • When there is no will

    Probate courts distribute estate assets according to your state’s intestacy laws when there is no will or if the will is invalid. As the first step of action in this process, the court appoints an executor for the estate. This is usually the surviving spouse or domestic partner. The next in line to become executors to the estate are adult children and other family members.

    Next, the estate property needs to be distributed. This, too, is done according to your state’s laws. However, no law recognizes unmarried partners, friends, and charities as legal beneficiaries. The assets are mostly passed on to a living spouse, children, and occasionally, other family members too. In case no one is available, the estate assets belong to the state.

  • If there is beneficiary conflict

    The estate needs to go through probate to resolve any conflicts that may arise during the distribution of assets. This can happen even when there is a will. Sometimes the conflict can be resolved with only the executor’s support. However, most often, the probate court needs to get involved.

    Issues like this are common if there are multiple heirs with sibling relationships, or if the deceased person was part of a blended family, or if they had an unmarried partner.

  • If the deceased had solely owned property

    The only way to transfer property that was solely owned by the testator to the beneficiaries is through probate. In case there is a will, the property is passed on to the heir listed by the testator. If there is no will, however, the property is transferred according to the state laws.

    Using a living trust, jointly owning the property, or filing transfer-on-death deeds are some common ways to plan ahead and help loved ones avoid probate.

  • If beneficiary predeceases testator

    Despite having an estate plan in place, a named beneficiary may pass away before or at the same time as the testator. In such a case, there would be no beneficiaries to pass the assets on to.

    So, the property goes through probate and is distributed to any named contingent beneficiaries. If the testator does not list any contingent beneficiaries, the court decides who the property goes to based on the state’s intestacy laws.

  • If there is non-titled property

    Some property within the estate assets may not have the proper paperwork available. In such cases, the executor needs to consult with the probate court and any important agents like financial planners, etc. to file the non-titled property efficiently.

    Following this, the property is transferred to the beneficiaries either according to the will, if there is one, or according to state laws if there is no will.

  • If there are any personal possessions

    Household items, jewelry, clothing, artworks any other collections need to go through probate. The executor needs to inventory these assets and distribute them according to the testator’s will or the state laws, whichever is applicable.

    In case no beneficiaries want to inherit these possessions, one of the executor’s duties also includes making proper arrangements for their donation or sale.

  • If you don’t have a digital estate plan

    Similar to traditional assets like houses and vehicles, your digital assets like cryptocurrency and photo albums need to be passed on too. However, simply sharing passwords cannot help you do this. Sharing passwords can be considered illegal by your service providers and even the law.

    You can create a plan for this by creating a digital estate plan – an estate plan for your digital assets. Without one, your loved ones may have to spend long and expensive hours at court trying to access your accounts.