	How to Prepare for the Death of a Loved One
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When is Probate Necessary?

The probate process may be necessary where there is an issue involving the validity of a Will or Trust and/or the terms of the same. There may be an issue on whether the Will or Trust was properly executed or whether the testator or grantor had the requisite mental capacity. If there are issues in dispute, then the probate process will be necessary.

Probate may also be necessary if the decedent did not have a Will or Trust and legal process must be followed in order to transfer title to assets that were not transferred prior to death. Probate is also required where assets were owned solely by the decedent and there were no other owners or designated beneficiaries of the asset. Probate may also be necessary in order to get the decedent’s name off of an asset and into a beneficiary’s name, such as real estate, car, or other assets.

Probate may be required if an asset was owned in a tenancy in common or joint tenancy and there was no designation regarding any survivorship interest for the passing of the same.

In summary, probate is typically required where there is no designated beneficiary or surviving tenant on an account.

WHEN IS PROBATE REQUIRED?

Some situations requiring probate include:

The deceased person held sole title to land, bank accounts, or stocks and bonds, and title needs to be cleared and/or ownership passed to heirs.
A dispute exists about who is entitled to receive the deceased person's assets.
To collect debts owed to the deceased person.

If the deceased person owned real property in another state, a second probate action may also be needed in that state.

WHEN IS PROBATE NOT REQUIRED?

Situations that may not require a probate include:

The deceased person owned assets of very little value, possibly qualifying for transfer without court supervision.
The deceased person owned assets jointly with or "payable on death" to another person, passing automatically to the surviving co-owner.
The deceased person owned assets that named another person as beneficiary.
The deceased person held all assets in a Revocable Living Trust.

This is for informational purposes only and not to be construed as legal advice. You should consult an attorney for expert legal advice.

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