Is Probate Required if There is a Will?

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Do you want to know whether you will have to undergo Probate now that your loved one has passed and leaves a last will and testament behind? The first question that a good probate attorney will ask you is whether there is a trust set up or just a Will. If there was just a Will, the answer is yes, you will have to go through Probate! Please keep in mind the time frame and costs associated with Probate can vary from county to county and state to state as well as the process and laws governing the process.

The value of the estate plays a very important role in this. For example, estates with a total asset value under $50,000 in New York are not subject to a full proceeding and can file small estate forms. This article will help educate you on the importance of Probate You will be able to understand the importance of Probate and how it is essential with or without the will. Read on ahead to find out more.

Importance of a Probate of the Will

Regarding Probate, there seems to be a lot of confusion and misunderstandings. Probate is basically the process or a legal procedure that provides a beneficiary some legal authority to own the assets or take care of the affairs of the deceased person. Typically, it is best to have an experienced attorney helping you file the necessary documents for Probate. Probation is a time-consuming process and can come with complications caused by family disagreements. You first need to know that you will need an original of the Will and Death Certificate. It is very important to remember not to remove any staples from the original Will as this may disqualify it. Please do so without removing staples if you need to make copies for your records. When obtaining the death certificate ask for multiple originals as you may need them during the process. Mistakes when filling out the paperwork needed for filing can delay or complicate the process.

Typically, within the Will, the deceased has named a person or people they wish to become the executors of the Will. Just because you are named an executor doesn’t mean that you must undertake the role. You can step away from the role allowing another family member to take your place. An executor assumes a fiduciary role and is responsible for ensuring all debts and taxes are paid off before dispersing any assets the estate holds.

Creating a list of assets is a Very Important Factor

When you want to establish the requirement of a proper Probate, it is important to ensure that you make a detailed and essential list of the things or assets that were owned by the deceased. Then you will have to find out some other important details. These details will provide you with some information about the estate’s ownership, such as how the apartment or house was deeded. Were the assets named under the deceased’s sole name or were there some joint names as well? The assets which have joint names can have tenants who are in common. This is important as it will give you a better understanding of the value of the estate.

As we discussed before if the total assets in the estate are under $50,000 you can avoid a full proceeding and need only to file paperwork for small estates. Knowing how properties are deeded plays a major role as they might be outside of probate and pass directly to the tenant in common. For example, a married couple has two kids, and one spouse passes away. Let’s say the deceased leaves a Will behind leaving all their assets in equal shares to the spouse and the surviving children. If the house is deeded tenants in common and both the deceased and spouse’s name are on the deed, then the house passes directly to the spouse and isn’t considered part of the estate nor has to undergo probate.

As you can see there are a lot of factors to determine whether or not you will have to Probate a Will to gain access to the estate as well as what is considered part of the estate. We offer free consultations if you are reading this and wish to consult with an experienced attorney. It is also important to remember that it is possible to plan ahead in order to avoid Probate altogether. Probate can be time-consuming and costly planning ahead can save you time and money. Call us today and let us help you!

DISCLAIMER: The information provided in this blog is for informational purposes only and should not be considered legal advice. The content of this blog may not reflect the most current legal developments. No attorney-client relationship is formed by reading this blog or contacting Morgan Legal Group PLLP.

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