Sunday, August 25, 2013

Since There is a Will, Is Probate Even Necessary?

This question has been raised before in meeting with me after a death: "Since dad had a will when he died, why is it necessary that we go through probate?"  Answer: basically, because the law requires it.  

Even though someone has a will when they die, the probate process is necessary for several reasons and just having a will isn't sufficient by itself to deal the process.  For example:
  • Probate establishes that it is a valid will of the deceased.  If there are questions about whether the individual had sufficient mental capacity, or was unduly influenced, or if they followed the legal requirements of executing a will.  (witnesses, etc.)  Probate establishes the will as legally valid.
  • Probate establishes and identifies the assets of the decedent.  If you are a beneficiary of an estate, how do you know what you are entitled to receive (I.e, 40% of the estate) if you don't know about all of the assets. Probate requires an inventory to be filed that lists all of the assets and the values of the assets.
  • Probate identifies beneficiaries and makes sure the proper procedures are followed.  How else can you confirm that a beneficiary is notified about their inheritance? The legal system ensures that they are located and given proper notice and a mechanism process to make sure their rights and interests are protected.
  • Probate identifies any proper creditors of the decedent.  There may be some unknown creditors lurking out there that the decedent owed money or potentially owed money.  Probate pulls those creditors "out of the weeds" and requires them to file a claim or forever be banished.  Or something like that.
  • Probate confirms all of the tax requirements are satisfied.  Some people may not be aware about the tax requirements or full awareness of past history.  Probate allows access and a process to finalize any tax requirements.
Most importantly, don't shoot the messenger.  I don't make the rules, I just help walk you through the minefield.  These are the rules that we live by and these rules have been in place a long, long time.  Besides, it gives me something to do.  

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