Why Must I Probate a Will?

Why must I probate a will?

A common question among heirs is why must the will of their parent or other close family member have to go to probate? If the decedent died without any assets in his or her sole name or had jointly held property that automatically passes to the surviving joint owner, then probate is not necessary. But in most other cases, probate is necessary for the transfer of the assets in the decedent’s name to the named beneficiaries.

Most states require that wills be submitted by the personal representative, executor or executrix or by the person in possession of the will. Also, anyone with a financial interest in the estate can have the probate court prove or determine the will’s validity.

Court

Approval

If a business was involved, you will need court approval for continuing the decedent’s business or for selling it. If there is real property, the estate must go through probate before title to the property passes to the heirs. It cannot be sold or mortgaged until title is legally established. Further, probate of any real estate can only occur in the state where the property is located.

Generally, a will cannot be probated or admitted to probate until after expiration of a waiting time.

Not all assets need to go through probate or require court approval before transfer to the named beneficiaries as it largely depends on how title to a particular asset is held. There are living trusts and life insurance policies whereby funds and other property can pass easily without the need for probate.

Your State’s Requirements

You may not have to probate a will, or you could use a summary or expedited process depending on the size of the estate. Most states have procedures whereby estates that are valued at under a certain amount can have its assets transferred to the estate’s executor to be distributed, although there may be certain requirements such as filing the will with the court and notifying beneficiaries and creditors.

Other states may require submitting the will regardless of the estate’s value but may use a summary probate procedure if no real property is involved. Usually, only an affidavit needs to be filed with the court, which will then issue an order providing for distribution of the estate assets.