Do You Need to Probate a Will?


The need to probate a will in court is largely determined by the size of the estate left behind. Smaller estates tend to not require the supervision of the probate court, while larger estates almost always require probate. The court may also be involved in the legal distribution of a decedent's assets if the person died without a valid will.

No Transfer of Property

Probate of a will document is not necessary when there is no real property such as a home or place of business to transfer from the decedent. The terms of the will may legally be carried out without the direct supervision of the court by the document's named trustee.

Transfer of Property

The primary purpose of probate by the court is to determine the identity of the decedent's named beneficiaries in his will document. This is required by the court when property changes hands through inheritance since it's necessary to ensure the person receiving the property is actually the named beneficiary in the decedent's will. The probate court can also settle any disputes as to who should inherit a decedent's assets if any parties believe the will to be a fraud, is an older version of a newer will document or is the result of duress placed on the decedent. Once the probate court determines validity of a will, proper distributions of assets may take place.

Taxes, Debts and Fees

Probate is necessary when a decedent leaves behind debts, as well as real property. The court determines which assets may be liquidated to pay these outstanding debts and sets a deadline for creditors to file any actions to receive payments for money owed to them. The probate court may then distribute any remaining assets in the accordance of the will document. If any taxes are owed by beneficiaries upon receipt of real property, the probate court ensures the beneficiaries make these payments in accordance with the law.

Dying Without a Will

The probate court becomes the distributor of a decedent's assets in the event she dies without a valid will document. Each state has its own laws regarding how assets are specifically divided. This division is usually based on a tier system of closest blood relatives with the spouse receiving the largest portion of the estate, then any surviving children and so on. The probate court enforces regulations involving proof of identity and the payment of any outstanding debts just as if an actual will document existed. According to the website for the 'Lectric Law Library, the court also assigns an executor to oversee asset distribution at a cost between 2 and 4 percent of the estate's value.

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