A frequent question asked of probate and estate planning attorneys is “Is Probate necessary? This is a question that depends on the specific laws of the state in which the deceased lived and owned real estate, as well as, the specific facts and circumstances.

The following is a list of reasons why an estate will need to be probated:

  • The Decedent owned property and assets solely in his/her name. If the Decedent had real estate or other assets in his/her name with no joint owner or payable on death beneficiary designated, a Probate is necessary in most cases to get the property out of the Decedent’s name. There are a few executions to this rule that are state specific, for instance, in some states a motor vehicle may be transferred to heirs at law without a Probate or bank accounts below a minimum value may be transferred to heirs at law.
  • The Decedent owned property as tenants in common. If the Decedent owned property as a Tenant in Common, particularly, real estate, a Probate will be needed in most instances to remove the Decedent’s name and transfer the property to the Decedent’s beneficiaries.
  • The Decedent had accounts solely in his/her name for which there is no designated beneficiary or the beneficiary predeceased the Decedent. If the Decedent owned an IRA, 401(k), annuities, life insurance or other accounts that have payable on death beneficiaries and there was no named beneficiary or the named beneficiary predeceased the Decedent, these assets will be payable to the estate and a Probate will be necessary to distribute the property.
  • The Decedent has creditors and debts. If the Decedent has creditors and there are insufficient assets to pay the creditors in full, the Probate process provides a mechanism for dealing with the outstanding debts of the Decedent.

Many times Probate can be avoided by putting a plan in place during lifetime that addresses these and other circumstances. We work with individuals and families to develop plans to avoid Probate (using revocable living trusts, beneficiary designations, and other methods) or to Probate their loved one’s estates. Each individual’s needs are unique and this article only provides a brief, general introduction to when a Probate is necessary. For more detailed information and to discuss your specific case, call us today at (678)781-9230 or email us at sgrissom@grissomlawfirm.com to schedule an appointment.

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