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 was there a trust setup as well 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 simply 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

When it comes to Probate there seem to be a lot of confusion and misunderstandings. Probate is basically defined as the process or a legal procedure which provides a beneficiary some legal authority to ownership over the assets or authority to take care of the affairs of the person who is deceased. Typically, it is best to have an experienced attorney helping you file the necessary documents for Probate. Probate is a time-consuming process and can come with complications caused by family disagreements. The first thing you need to know is 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. If you need to make copies for your records, please do so without removing staples. 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 executers of the Will. Just because you are named an executor doesn’t mean that you must undertake the roll. You can step away from the roll allowing another family member to take your place. An executor assumes a fiduciary roll and is responsible to make sure all debts and taxes are paid off prior to dispersing any of the assets held by the estate.

Creating a list of assets is 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 are the details which are going to provide you with some information about the ownership of the estate such as how the apartment or house were 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 play a major roll as they might be outside of probate and pass directly to the tenant in common. For example, a married couple having two kids and one spouses 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 spouses name are on the deed, then the house passes directly to the spouse and isn’t considered as part of the estate nor does it have 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 as part of the estate. If you are reading this an you wish to consult with an experienced attorney, we offer free consultations. It is also important to remember that it is possible to plan ahead in order to avoid Probate all together. Probate can be time consuming and costly planning ahead can save you time and money. Call us today and let us help you!

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