Why Probate is Essential When There is a Will

Probate is a court-supervised process that verifies a will and approves the designated executor to distribute assets and possessions. During the succession process, all assets must be located and evaluated to determine their full value. Contrary to popular belief, not all wills go through probate. Depending on the state, certain properties and assets may be exempt from the probate process.

Any property that is part of a will is referred to as a “testamentary asset”. If the deceased had a will, then the individual responsible for the estate is the executor named in the will. If there is no will, then the closest relatives are responsible for legalizing the inheritance. This would be the surviving spouse, if any.

If there is no surviving spouse, then the responsibility passes to the children. Avoiding probate can also protect privacy, as some of the records may not be accessible to the public. Legalizing probate can be complicated and time-consuming, but when you understand the objective and process, it can become less stressful. Many states have simplified probate processes for properties where the value of testamentary property is relatively low. There are many valid reasons to avoid probate legalization, from emotional to financial reasons.

If you want to establish your estate to largely (or entirely) avoid probate legalization, know that there are ways to do so. If an asset is jointly owned by the deceased and another person, such as a bank account or joint property, then it is not subject to probate legalization. The complexity of the probate process generally depends on the size and circumstances of the estate. The size of the estate is determined by its total value, and even if you live in a state that doesn't allow you to completely bypass the probate process, there's usually a simplified process available with fewer requirements and minimal judicial oversight. In addition to these drawbacks, there are also legal fees and wealth tax which can increase significantly during the probate process. If assets name a beneficiary, such as a life insurance policy or retirement account, then they would automatically pass to them without needing probate.

There is no requirement that a will or property go through probate, but if an asset is not specifically organized to prevent it, then there is no way for beneficiaries to obtain legal property without it.

Kristie Funn
Kristie Funn

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