I am often asked to answer the question, "Do You Need to Probate a Will?" Simply put, probate is the legal process for a personal representative to carry out the decedent's wishes as expressed in the decedent's Will. Basically, through the probate process, the personal representative is getting a judge to order how the assets of the estate – the property that the decedent leaves behind – is distributed.
When a loved one dies, the survivors often wonder if the property that the decedent left behind needs to go through probate. The answer depends on what sort of property needs to be transferred, and how it is titled. Property can be either probate or nonprobate in nature. Probate assets require a judge to order that ownership of the property be transferred from the decedent to someone else. Nonprobate assets are automatically transferred from the decedent to someone else when the decedent dies.
That is a fairly technical definition, and an example or two will be worth 1000 words. A probate asset would be something that is titled exclusively in the decedent's name, and does not have a beneficiary designation or another method of transferring ownership when the decedent dies.
For example, if the decedent owns a car outright, and no one else is listed on the title, that would be an example of a probate asset – you will need a judge to order that ownership of the motor vehicle be transferred from the decedent to someone else. Another example of a probate asset might be if a decedent owned real estate and was the only person on the title – and a TODD or another method of automatically transferring the title had not been recorded. Still another example of a probate asset might be life insurance or an IRA without a beneficiary designation.
Still, there are other methods besides starting a probate to transfer ownership of an asset from the decedent to someone else. You might fill out a form at the DMV to transfer title for a motor vehicle, or prepare an Affidavit of Collection of Personal Property. Your best bet is to consult with an attorney about your options for transferring ownership.
Estate planning is what you do now, while you are still alive, to avoid or at least minimize the necessity of probate to transfer ownership of your property. An attorney can help you with your estate planning, and make sure that what you want to happen with your property actually happens.
The best way to determine if you need to prorate a will is to call a probate attorney.. To that end, I invite you to give me a call at 763-450-9494 to discuss your specific situation. Everybody who calls gets a free 5 minute mini telephone consultation. An in person meeting is $295, and that amount is credited to your account when you retained me to represent you in probating a Will..
WARNING: The information contained in this article does not constitute legal advice and may not be applicable to your situation. Tim is licensed to practice law only in the state and federal courts of Minnesota, and the advice that he gives is applicable to that jurisdiction only. Further, reading this blog post does not create an attorney-client relationship between you and Baland Law Office, P.L.L.C. You should always discuss your situation with an attorney before taking any action based on what you may read in this blog. To that end, please call (763) 450-9494 to set up an appointment to discuss your situation.