Estate planning attorneys are usually asked “When is probate really required?” As with a lot of estate planning inquiries, the answer subject to the specific laws of the state where you resided when you passed away furthermore to the laws of any other state where you’re the owner of real estate. The following is a list of reasons why an estate would be required to be probated.
Assets Ownership in the Deceased Sole Name
When the deceased was owner of property exclusively in their name, not having any other joint owners or a POD appointment, additionally in a lot of cases the property will be required to be probated to get it taken it out of the deceased’s name and placed in the names of the beneficiaries of the deceased. A deviation in many states are vehicles.
For instance, in the states of Florida and Tennessee, a motor vehicle may be transferred to the decedent’s heirs at law devoid of a probate estate being opened. Separately, many states have a straightforward approach for “small estates” that takes to an extent less time than a full probate management. In Florida, a small estate is deemed to be worth $75,000 or less.
Assets Ownership as a Tenant in Common
When the deceased ownership of any property in their sole name as a tenant in common with other individuals, additionally in a lot of cases the deceased’s tenant in common portion will be required to be probated to take it out of the deceased’s name and into the names of the beneficiaries of the deceased.
The “small estate” process afore mentioned additionally is applicable to a tenant in common interest if the decedent’s fractional portion is worth less than the relevant state’s small estate ceiling amount.
Note that when the tenant in common interest was renamed into the designation of the decedent’s Revocable Living Trust prior the deceased dying, it’s interest won’t be required to be probated.
Predecease Beneficiaries or No Named Beneficiaries
When the deceased owned a POD or likewise kind of account; a Health or Medical Savings Account; life insurance; retirement accounts, comprising of an IRA and/or 401(k); or an annuity, and all of the named beneficiaries of the account or policy have passed away before the deceased, or when the deceased did not name any beneficiaries whatsoever, then in a lot of cases the account or policy will be required to be probated to place it into the names of the deceased’s beneficiaries.
The “small estate” process afore mentioned is also applicable to an account or policy not having a valid beneficiary considering the account or policy is worth less than the relevant state’s small estate ceiling amount.
The Deceased Did Not Have an Authentic Last Will and Testament
When the deceased doesn’t have an authentic last will and testament at the time of their passing and one or more of the circumstances detailed above are applicable to the decedent’s assets, then in many cases the assets will be required to be probated in order to take them out of the deceased’s name and placed into the names of the deceased’s heirs at law.
The “small estate” process afore mentioned is also applicable to an intestate estate considering the worth of the deceased’s property is less than the relevant state’s small estate ceiling amount.
The Deceased Has an Authentic Last Will and Testament
Even when the deceased has an authentic last will and testament at the time of their passing, if one or more of the circumstances detailed above applies to the deceased assets, then in most situations the assets will be required to be probated in order to take them out of the deceased’s name and into the names of the deceased’s beneficiaries appointed in the will.
The “small estate” process afore mentioned is also applicable to a testate estate considering the value of the deceased’s property is less than the relevant state’s small estate ceiling amount.
Source:
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Garber, J. (2020, September 25). Do you know WHEN probating a will is necessary? Retrieved February 15, 2021, from https://www.thebalance.com/when-is-probate-necessary-3505265
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