When a relative dies, it’s always a distressful moment for the family. However, more problems arise when it comes to distributing the properties of the deceased among the beneficiaries. Sometimes, the process is flawless and straightforward when everyone agrees on how the properties should be distributed. However, there are cases wherein people contest the distribution of such properties. Such contests involve uphill legal battles between families and other beneficiaries. The cases are stressful, and, sometimes, people don’t get what they deserve. It’s such reasons why people are advised to get a probate litigation lawyer to help them compile evidence properly and pursue the case successfully. This legal course of analysis and transfer of the property to the beneficiaries is called probate.
As earlier mentioned, probate is the legal and financial process that happens after someone dies. The process involves court appearances, paperwork, and, sometimes, disagreements between the beneficiaries. As expected, the deceased will have left a will behind on how they expect their properties to be shared. Different states will have different probate procedures, although common laws, like the ones listed below, apply almost everywhere. Each family going through the probate should also be aware of how it’s done. Here’s how one can go about such process:
- Validation and submission of a will through a court of law. When the deceased didn’t leave any will, interstate laws on probates will be used instead.
- Appointing of an executor or an administrator to conduct the distribution by the court. In some cases, the deceased will have already appointed an executor.
- The court will oversee the management of all the properties and the assets, make a catalog of the properties, and assign the correct value to each property.
- Any creditor will be certified, and any debt will be paid from the deceased person’s properties.
- After the debts have been paid, the remaining assets will be distributed according to the will, or in case there’s no will, the task will be undertaken by the interstate laws.
If everything goes as planned and there’s no contention, the properties will be distributed, and the beneficiaries go home happy. Unfortunately, the probate process is usually not smooth as always. There are cases wherein people claim injustice in the distribution, and, therefore, challenge the will. Here are some of the things that can cause probate litigation:
- A will that doesn’t meet the legal formalities. It can’t be used to distribute properties and assets. The court has the freedom not to honor the will or use it.
- If the deceased is proven to be mentally incapable to write the will at the time of writing the will. As a result, the court won’t allow the probate to happen, and anyone could challenge the distribution.
- Unfair treatment of the children by the parents in the will. This refers to cases wherein some children get more than the others, or some get, but others don’t.
- General disagreement between the beneficiaries of the will if the circumstances have changed since the creation of the will.
- If the deceased was under the influence of someone to create the will and make certain dispositions.
Importance of Probates
Conducting probate has several advantages because, during a time of grief, it would be best if someone who’s not attached to the family takes control of the distribution of the property. A probate will be helpful in the following ways:
- If there are chances of disagreements due to some loose ends in the will, a probate will help settle such cases.
- If the deceased had a significant amount of properties and assets, the court, through an administrator, can make a catalog of all these resources, including debts and credits owed. This will help reduce cases of any future misunderstanding arising from unknown properties.
- The court safeguards assets during probate because they’re placed under the court’s management.
- In case the deceased left no will, those in contention of the properties should go for probate because the court will use the inheritance law to distribute the property.
- The property will be distributed according to the deceased instructions, which helps uphold their wish on who should get what in the will.
With such benefits, you should consider going the probate way. You should note that probate is vital if there are uncertainties about the will.
Is Probate Necessary
Some families will always opt for probate because of the reasons mentioned above. However, not all property inheritance will require probate. There are some exceptions, and also avoiding probate could have some benefits, too. Moreover, if the deceased had more debts, taxes, and other expenses than the properties they hold, none of the beneficiaries will inherit anything. Therefore, there won’t be a need to have a probate.
Probates also include several legal fees because you may need to hire a lawyer, as well as cover court fees and administrative fees. This takes away the net inheritance of the beneficiaries from a financial aspect. Another case wherein there won’t be a need for probate is when the deceased was in joint ownership of properties, bank account, or any other asset at the time of death. The properties will be passed to the other owner if they provide the death certificate and identification proving joint ownership. This case also doesn’t require a probate.
Finally, if there are no disputes and disagreements regarding the will, you can distribute the properties among the beneficiaries without probate. One of the benefits of avoiding probation is that you save money, hence, cutting down the debts and expenses that you have to pay from your inheritance.
The Probate Process
Not all cases concerning wills and inheritance have to go through the probate process. Familiarizing yourself with the probate process will help you know what cases can take that route and what cases shouldn’t. There are some real benefits to choosing probate, especially when you have to protect assets during the inheritance time and when settling disagreements among those in contention. However, probate involves fees, and that eats into what you get as an inheritance. Avoiding probate could mean saving a lot of money as you avoid legal fees. But, closing down the assets and properties of the deceased could be a problem.
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