Do I Need Probate If There Is A Will – Most people know that a will is an important document if you want to ensure that certain people will inherit your assets, such as your house, your car, or your inheritance, after your death. A valid will will control how your assets are divided, but they will still be subject to the probate process. If you want to avoid the long process, there are several ways through estate planning to pass assets without probate.
It is important to understand that having a will is not enough to avoid probate proceedings. Probate is the process of proving a will or transferring a deceased person’s assets under your state’s intestate succession laws if there is no will.
Do I Need Probate If There Is A Will
Probate is a long and expensive court process, so if you want to help your loved one speed up the process or avoid it altogether, here are six things you can do. Depending on the circumstances, probate may be unavoidable, such as if the deceased has creditors, but there are things people can do before they die to ensure the process goes smoothly for their loved ones.
How Indiana Probate Law Works
The first step is to have a will. Without a will, your personal and real property will pass according to your state’s intestate succession laws. An intestate simply means you don’t have a will and your last will or testament is invalid.
For a will to be valid, you and two witnesses must sign it. You may need to have a notary public depending on where you live.
In an interview with Pamela, she explained the difference between testamentary succession and intestate succession. A will means that a person leaves a valid will. Intestate means no valid will. In these cases, probate is required to pass the assets to the heirs, but if there is no will, your state’s intestate succession laws will apply during the probate process.
The state draws something from the “family tree” to determine who will inherit the estate. Pamela mentions that there is a common misconception that close family members automatically inherit a house or other assets. However, if the spouse or children are not listed in the will or title, the assets may be divided in a way that the deceased finds undesirable.
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If you have a specific wish for your property to go to specific friends and family but do not have a will, the probate court will be bound by the law.
Secondly, when making your will, ensure that your witness signs an affidavit attesting to it. This is not required in the state of Florida, but it is a great way to speed up the probate process. Without it, the process of probating a will requires finding the original witness and proving the authenticity of the will. If the witness is absent or incapacitated or dies, the personal representative named in the will or another person who has no interest in the property must confirm the validity of the will under oath.
This third option is possible if probate is required and you live in the state of Florida. There is an option to file for summary administration if:
Summary administration usually takes three to six months depending on your circumstances. If your circumstances do not meet these requirements, formal probate administration is required. This can take between seven and nine months.
Do I Need To Use Probate Solicitors Or Can I Use Probate Experts Online
A fourth way to prevent or speed up probate is to ensure that the assets transferred through the beneficiaries named in the contract are designated and/or renewed. There are some important assets that are not probated and, therefore, will not go through the probate process if the beneficiary is still alive or is not listed as “my estate.”
The caveat here is that if the person you named as the beneficiary on the account or who has title dies before you do, the asset can be used to determine who has the right to inherit.
As well as updating the heirs and co-owners, another way to avoid probate is to set up a joint bank account or a Payable on Death (POD) bank account. Banks have this form available to fill in, so call or visit the bank to see this. As long as you are alive, the person named to inherit the POD has no claim.
This is a great way to keep a lot of money out of an experience. After your death, the beneficiary simply contacts the bank, confirms the proof of death and identity, and collects the money held in the account.
Do You Have To Do Probate When Someone Dies?
If you have property that you want to leave specifically to your spouse or domestic partner, ensure that you have title to the deed so that probate is not required. You can skip the entire probate process for titled assets, such as your home, with proper estate planning.
Joint Tenancy with Right of Survivorship is a way of holding property ownership. This means that the property is automatically transferred to the surviving owner when one owner dies. This works well for married and single couples buying a substantial property together or friends or relatives buying a property. This can be used for a house, car, bank account, or other valuable asset.
This method avoids probate entirely even if the deceased tenant has creditors because they are not entitled to their share after death, and will not be included in the estate to pay the final bills .
There are four requirements or “unity” for two or more people to take ownership through a Joint Tenancy with Right of Survivorship:
Why Would You Need A Probate Attorney?
It is important to understand two things about Joint Tenancy with Right of Survivorship. 1. Other owners named in the instrument take the same share as the rest’s share. 2. None of the owners can transfer their shares to the heirs in the will.
Tenancy by Entity is only permitted for owners who are legally married. This method of holding title treats the couple as one person for legal purposes. Ownership is given to them as if they were a single person, and if a spouse dies, the title passes to the surviving spouse. This method, like a joint tenancy, does not require a will, probate or other legal steps to transfer the title.
These assets are also protected or free from judgment against one of the spouses, so creditors have no claim to the property either.
Community Property with Right of Survivorship is another way for married couples to hold title, but it only applies in certain states like Arizona, California, Nevada, Texas, and Wisconsin. Community property is a form of ownership where the spouse has the right to dispose of half of the property or it will go to the other party. However, the right of survivorship can be extended to allow one spouse’s interest in community property assets to pass without probate to the surviving spouse.
Dying Without A Will
Transfer on Death deeds are allowed in some states. This means you can set up a deed now that will only take effect when you die. The deed must be prepared as a normal deed. It must be signed, noted and recorded by the county clerk. The deed must expressly state that it is void until death.
Other states recognize Better Life Estate Deeds sometimes called Ladybird Deeds (named after President Johnson’s wife, Claudia Alta “Lady Bird” Johnson). Florida, Michigan, Texas, Vermont, and West Virginia are the only states that accept this type of action.
The owner of the property, or “life tenant”, who retains possession and use of the real estate during their lifetime. A tenant for life can also take out a second mortgage, refinance, or sell the property without the consent of the beneficiary named in the Ladybug Deed as they would have done in the absence of the deed.
As with a Transfer on Death Deed, an Extended Life Estate Deed must be prepared, signed, and recorded in the state clerk’s land records just like any other instrument used to transfer title. This type of deed also allows the property to go directly to the heirs without probate.
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The last way to avoid probate is to create a living trust, also known as a revocable trust. This is a contract you sign yourself that sets out a plan for how your assets will be managed.
The Grantor. This is a person who creates trust. This person decides which assets will be put into the trust and how they will be managed in case of disability or distributed on the Grantor’s death. All assets are then given title back to the trust.
The Trustee. This is the person who manages the trust. Unlike a Better Life Estate Deed, the manager of the trust will have all the power to buy, sell, give or lend. The Grantor acts as Trustee while he is alive, but if he becomes disabled or dies, the Successor appointed in the trust takes over the management of the assets.
Beneficiary. These are the people who can use and enjoy the assets named in the living trust. Helpers also play this role while they are still alive. On death, the assets pass to the heirs without the need for probate.
When Don’t You Need Probate?
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