Is Probate Court Always Necessary With a Will?


Quick Answer

Beneficiaries require a probate process even where a will exists, as the title of the property to a deceased individual's estate can only be legally transferred by a court, explains FreeAdvice.com. Additionally, certain localities require a probate process for some types of estates.

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Beneficiaries also require a probate process in situations where a will is disputed, explains FreeAdvice.com. The probity of a will may be contested if the author was mentally incompetent during the drafting process, if it contains mistakes, or if the document was executed in deceit. Generally, courts consider a will invalid if the provisions are not intended to be executed immediately after the author's death, if the document refers to unreal events, or if it is proved that the author intended to sign another will.

Additionally, beneficiaries require a probate process in situations where the estate's assets are exclusively in the deceased's name or if the individual co-owned property with others, explains FreeAdvice.com. In addition, the process is necessary if the deceased did not name beneficiaries or where designated beneficiaries are already dead.

Legal investment structures allowed by the Internal Revenue Service that are known as living trusts are the only way of avoiding the probate process, explains FreeAdvice.com. The provisions of a living trust are intended to go into effect while the creator is still alive.

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