Why Do Wills Have to Be Probated?
Our society uses probate as the "official" way of transferring a dead person’s property to a living person.
Every county of the United States has a separate court (the probate court) that does nothing but handle probates. Probate courts are separate form the civil and criminal courts. If each courthouse has a separate area for probate, probate has got to be a huge part of the system’s burden. When property is passing from a deceased individual to a living individual, it will have to go through the probate system unless it can be transferred using some probate avoidance trick.
The common "legal trick" people use to avoid probate is joint tenancy with rights of survivorship.
Joint tenancy is a type of ownership vehicle that probably shouldn’t be used, even between a husband and wife. Joint tenancy is a direct path to asset protection disaster and tax disaster. Oh, you might avoid probate, but you are going to pay dearly just to try and avoid probate.POD accounts, life insurance policies, IRAs, 401(k)s, other retirement accounts, benefit accounts, and a number of other common legal tools avoid probate in specific situations.If you are going to have to have property probated, you’ll certainly want to write a will which will direct the court and let them know what your personal desires are. If you don’t write your own will, you’ll get the state’s will. If you haven’t seen your state’s will, you need to take a look, because I don’t think you are going to like it. At least take the time to prepare just a simple will. If you need to sign your name to transfer property you now own, it will be necessary to probate your estate after you die. Real estate, and of course bank accounts, safe deposit boxes, brokerage accounts, car titles, and mutual funds all need a signature to transfer ownership.
A safety deposit box can only be opened by your signature, so who signs after you die? In order to sell your home after you die, the deed will need to be signed. Who will sign it? That’s when she is going to have a problem. Then the title company sees your name on the deed, they will ask for you to come and sign the deed. You’re not going to be signing any deeds, because you’re deceased. Your daughter is going to make the argument that she owns the house. She might even have the will which says you wanted her to have the house. When all the dust clears, the title company isn’t going to accept her signature. The buyer can’t accept her signature on the deed.
Your daughter is going to have to prove to the court’s satisfaction that the will she has is your one and only last will and testament. Just having her say that the will is your real will won’t satisfy the probate court. The probate court will demand proof. She will have to prove that you didn’t have any creditors or at least that your creditors have been paid off. Notice must be given to all of your creditors and publication made in the papers to find any unknown creditors.
He will give her a paper called a "letters testamentary" after she has proven everything to the court’s satisfaction. The letters testamentary will be recorded along with the title by the title company.
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