Probate is required if the deceased person owned real property or if his or her other assets are above the threshold amount, which is usually $50,000 for major banks and lower thresholds for other financial institutions. Assets that had been “owned jointly” (but not assets held “in common”) pass automatically to the other joint owner and do not form part of the deceased estate. Also, benefits from life insurance on the deceased paid directly to a nominee is not part of the estate, nor are trust assets held by the deceased as trustee.
Lack of testamentary capacity – This is the legal term describing a person’s legal ability to make or alter a valid will. This becomes an issue when someone claims that the testator – the person who made the will – did not understand what was happening. Examples would include the testator not understanding they were signing a will, had no comprehension of what property was being willed away, or no comprehension of who is receiving the property.
In other words, probate is a process with the purpose to prevent fraud after someone’s death. It is simply a way to freeze the estate until a judge determines the will is valid, that all relevant people have been notified, the property in the estate has been identified and appraised, the creditors and all taxes have been paid, and the assets of the estate have been distributed according to the wishes of the decedent.
The appointment of an administrator follows a codified list establishing priority appointees. Classes of persons named higher on the list receive priority of appointment to those lower on the list. Although relatives of the deceased frequently receive priority over all others, creditors of the deceased and 'any other citizen [of that jurisdiction]' may act as an administrator if there is some cognizable reason or relationship to the estate. Alternatively, if no other person qualifies or no other person accepts appointment, the court will appoint a representative from the local public administrator's office.
Before exploring the types of probate, we want to express our option that if you have been named as the executor of an estate, probating a will is not something that you should try to do alone. As the executor, you have the fiduciary responsibility to make sure all estate matters are handled properly, and experienced legal counsel is essential to avoid needless mistakes and delays in the probate process.
Most states have laws in place that require anyone who is in possession of the deceased's will to file it with the probate court as soon as is reasonably possible. An application or petition to open probate of the estate is usually done at the same time. Sometimes it's necessary to file the death certificate as well, along with the will and the petition.
Although legal restrictions may apply, it is broadly possible to convey property outside of probate, through such tools as a living trust, forms of joint property ownership that include a right of survivorship, payable on death account, or beneficiary designation on a financial account or insurance policy. Beneficiary designations are considered distributions under the law of contracts and cannot be changed by statements or provisions outside of the contract, such as a clause in a will.
An executor is a person appointed by a will to act on behalf of the estate of the will-maker (the "testator") upon his or her death. An executor is the legal personal representative of a deceased person's estate. The appointment of an executor only becomes effective after the death of the testator. After the testator dies, the person named in the will as executor can decline or renounce the position, and if that is the case should quickly notify the probate court registry accordingly.
When Aretha Franklin died intestate—without a legal will—in 2018, she joined a surprisingly long list of famous people, including Prince, who also did the same. By not preparing the documents, she made the task of settling her affairs more complicated for her survivors. While your estate may not be as large or complex as a famous singer's, it's still important to have a plan in place in the event of your death.