Why Does a Will Have to Be Probated?
The probate process is the official mechanism our society uses to transfer a deceased person’s property to living people.
Probate is handled by a separate court system that has been set up in every county in the United States. The probate courts are generally separate courts from the criminal and civil courts. Obviously, probate is a big deal. Property that passes after a death, which requires a signature in order to be transferred, must go through probate, unless some sort of a legal trick is used to avoid probate.
The "legal trick" of choice for most couples, who want to avoid probate, is joint tenancy with rights of survivorship.
Whenever there is a probate, it is a big step forward if there is a will to direct the court and express the desires of the deceased person. If you don’t have a will that you have written, the state has a statutory will for you. Trust me, you’ll love your state’s will – NOT! At least take the time to prepare just a simple will. After you die, a probate is necessary on all property that needs your signature to sell it. Bank accounts, safe deposit boxes, brokerage accounts, car titles, and of course real estate all need a signature to transfer ownership.
A safety deposit box can only be opened by your signature, so who signs after you die? If the kids want to sell your house, who signs the deed after you die? She won’t have any problem until she tries to sell the house. Assuming she doesn’t live in the house, but sells the house immediately after you die. If you’re dead, you’re not going to be signing a lot of deeds. Your daughter will argue that the house is hers. She can probably even produce your will which leaves the house to her. However, she isn’t going to be able to have her signature accepted by the title company. It’s a certainty that the buyer won’t accept her signature.
She is going to have to prove that the will she has is your real last will and testament, when she finally gets in front of the probate judge. 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. This will involve notice to the creditors she knows about and publication in papers to "smoke out" any creditors she may not know about.
He will give her a paper called a "letters testamentary" after she has proven everything to the court’s satisfaction. The recordings let the world know that the probate process has been met and the buyer has good title to the property, even though your signature isn’t actually on the deed.
My book, Guaranteed Millionaire, explains the probate process in detail. Order now and get a FREE 90 minute audio CD bonus. The CD is a $20 value, so make sure you click for or ask for the bonus!Publications
