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Why Is Probate Necessary?

The probate process exists to transfer title of estate property from a decedent to his or her rightful heirs or beneficiaries. The process focuses on proving that a valid will exists, or alternatively, determining whether one's heirs are rightful and legitimate beneficiaries in instances when there is no will.  Although this process is quite common, not many people know why, exactly, probate is necessary.  Let's explore the issue: 

Transfer and Taxes

The main function of the probate process is the transfer of title of estate property from a decedent to heirs or beneficiaries, as well as to collect taxes due as a result of the decedent's passing or the property transfer. The probate process provides for the payment of taxes and debts that remain outstanding for the estate. The process likewise sets a deadline for claims to be filed by creditors and thereby forecloses older, stale creditors who have not received payment from continuously nagging beneficiaries for payment without end. Additionally, the probate process provides for the residual estate's distribution to the legal heirs.

Distribution of Property

The probate procedure is required in order to legally distribute a decedent's property to third parties, such as the heirs or beneficiaries. However, in instances of smaller-dollar estates, a less formalized process than probate may suffice that is still supervised by the probate court. Just because a decedent has a will in place does not mean that everything is determined satisfactorily and sufficiently. Even when a will exists, a probate court must still permit parties to file objections to that will. Then, if objections are filed, the probate court must make a determination if the will in question is valid, given the bases of the objections filed.

Ensuring the Validity of a Will

The probate process is utilized to remove the potential that a will is the result of improper forces such as fraud, mistake, or undue influence. Probate also ensures that a will was created when the decedent was mentally competent to make it. Probate makes sure that if there are competing will versions, that the latest valid one is used as a replacement for older, prior versions. The probate process likewise ensures that a will has been properly executed by the decedent and safeguards against any will forgeries. Probate will also determine if a will is not valid due to a pre-existing contract in place. Finally, the probate process considers other estate claims that affect beneficiaries' gifts received pursuant to the will's provisions.

A person can plan with his legal counsel and/or financial planner to avoid the probate process after his or her passing. The main way parties accomplish an avoidance of probate for their estates is through use of a vehicle called the living trust.