We regularly receive calls from persons asking if they need to probate a loved one’s estate. Unfortunately, the answer to the question is probate required depends on a number of factors including the specific laws of the state in which the deceased lived and owned real estate, as well as the specific facts and circumstances of their estate. The following is not an all inclusive list but includes some of the most common reasons an estate must 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, a Probate is necessary in most cases to take the property out of the Decedent’s name. There are a few exceptions 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 so that no probate is required.
- 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 financial 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), annuity, 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 your 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). 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 to schedule an appointment.
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This Blog/Web Site is made available for educational purposes only as well as to give you general information and a general understanding of the law, not to provide legal advice. By using this blog site you understand that there is no attorney client relationship between you and Grissom Law, LLC.