It is important that individuals understand the potential legal implications of their decisions. This article provides helpful information, however, it should not be taken as official legal advice. For any inquiries or concerns, we highly advise consulting with a probate attorney for genuine counsel and answers tailored to your unique situation.
Grief is a difficult emotion to manage, especially when it involves allowing yourself the time and care needed following the passing of someone close. But for those tasked with being Executor during this delicate process, managing family possessions can add an extra layer of complexity to such trying times.
Before transferring any precious heirlooms or much-coveted sports cars to your nephew Johnny, it’s important to assess whether probate is required. If a house has been left in the decedent’s estate, legal counsel should be sought as no shortcuts can be taken. Failure to follow the correct rules could result in litigation from disgruntled beneficiaries down the line. Knowing when probate must take place and when it can safely be avoided will ensure all parties involved remain protected by abiding by established rules.
Starting with the fundamentals: What is probate?
The American Bar Association has identified probate as a formal legal process with the main purpose of providing recognition to a will and appointing an executor or personal representative who can handle estate administration and asset distribution. Despite common misconceptions, whether every estate requires going through probate depends on what are the assets, what is their value, and who are the heirs. Under some circumstances, steps can be taken to avoid probate.
Initiate probate to get appointed to take care of the house
As the personal representative for an estate, you must be legally appointed by a probate court to manage its assets. It takes time to get appointed by the court, so the sooner you start the better to reduce holding costs of the decedent’s house.
When is probate absolutely required?
Understanding why an estate needs to go through probate is essential for efficient administration. In general, there are four common justifications:
1. The decedent owned real estate
Whenever a decedent dies owning real estate, there must be some probate procedure to either transfer the property to the rightful owner or to appoint a personal representative to manage the real estate. The probate procedure will be a Petition for Probate if the probate assets are worth more than $184,500, or one of the summary procedures if the probate assets are worth less than $184,500 or if the surviving spouse is the sole recipient.
2. There is no real estate, but the probate assets are worth more than $184,500
Even if the decedent did not own any real estate, there must be a Petition for Probate if the decedent’s probate assets are worth more than $184,500. The only way to get the assets, such as a bank account or brokerage account, is to have the court appoint you as the personal representative.
3. When necessary to admit the will to probate
Probate can be an essential legal step to ensure that the assets of an estate are properly and legally transferred according to a decedent’s wishes. In some circumstances, it is required in order for creditors or beneficiaries of the estate to receive their share. A valid will may still necessitate probate proceedings for effective transfer of ownership—especially when a property like real estate must change hands.
