Why Do I Have To Go Through Probate? -- Boyum Law
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WHY DO I HAVE TO GO THROUGH PROBATE?

Why can’t I just transfer all of my parents assets to my siblings without going to probate court?

One of the main purposes of probate is to change title to assets.  In short, that is why estates need to go through probate.  Because the owner of the property has passed away and is not longer able to transfer title, someone has to be authorized to handle that job on his behalf.  That person is the executor or the personal representative.

In general, the process clarifies issues in a will and resolves any challenges to the distribution of funds of an estate. The type of probate needed depends on the size of an estate. In Nebraska there is formal and informal along with small estate laws that allow for an abbreviated form of probate when the estate is small enough. Without probate of a will, complicated legal issues can arise.

Is it necessary even if there is a valid will?

If you have a will and you do not have a trust then you have to go through probate.  It is designed to insure the a person’s money and property are properly transferred to the beneficiaries.

Other Common Reasons Why It Is Necessary

If the person who died did not have a will to determine the beneficiaries and to distribute the decedent’s assets and title to property.  The beneficiaries would be determined according to Nebraska intestacy laws.

It is necessary when there are problems with an existing will. Some of these issues may include: there is a newer version of the will; there are mistakes in the will or it was not executed properly; the will was drafted at a time when the decedent was not of sound mind; or any other challenges to the integrity of the will.

It is required when an estate’s assets are solely in the deceased’s name. In most cases, if the deceased owned property that had no other names attached, an estate must go through probate in order to transfer the property into the names of any beneficiaries.

When there are no beneficiaries named or they have predeceased the decedent, probate is necessary. This situation applies to any retirement or savings accounts such as IRA or 401(k) accounts or life insurance policies that would pay out to beneficiaries; if beneficiaries are not named or are all predeceased, the accounts will need to allow the court to determine the rightful beneficiaries.

It is required when a decedent owned property in joint tenancy In the case that a decedent owned property with others, probate must be used to remove the decedent’s name and transfer his or her share of the property into the names of the appropriate beneficiaries.

In summary,

  • The process clarifies a will and protects an estate from challenges to the specified beneficiaries of inheritance.
  • Some asset transfers can happen outside of probate.
  • There are estate planning strategies that avoid provide. A will does not avoid probate.