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Probate - A
Necessary Evil? |
What Triggers Probate?
1. When you die
2. If you become unable to handle your own affairs
3. If your minor children inherit property
Why Is Probate Necessary?
When you die, probate is the legal process through which your bills are paid and your property is distributed based on what your will says (if you have one) or what the law says (if you don't).
Probate is the only way to legally transfer title to any titled property (such as real estate, car, bank
accounts, etc.) when the person listed as the owner cannot sign his/her name due to death or
incompetency, or because he/she is a minor.
Common Misunderstandings About Probate
1. "I have a will so my estate won't have to go through probate."
Wrong. A will simply tells the court how you want your assets distributed. If you own real property or if your estate is valued over a certain amount, it will have to go through probate.
2. "I have a power of attorney, so my estate won't have to go through probate."
This is a common
misconception. A power of attorney dies when you die. It can't be used
to change title to your property after your death.
3. "I don't have a will, so there won't be a probate."
Wrong. If you don't have a will when you die, the state dictates how your assets will be
distributed and your estate will still go through probate.
4. "I own everything jointly with my spouse, so my estate won't have to be probated."
Maybe. If you die first, your estate won't need to be probated. But if your spouse dies
first, everything goes to you, and then when you die, your estate will have to go through probate.
Furthermore, if the "joint" ownership is a tenancy in common, rather than a joint tenancy,
then when you die, your half will have to be probated.
In addition, if one of the joint owners becomes incapacitated and is unable to sign his name, the probate court steps in.
A great way to avoid probate is with a
living trust.
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