Do You Always Have To Probate A Will?

Written by J. Hirby and Fact Checked by The Law Dictionary Staff  

Probate courts can be expensive and time-consuming. Many state prefer that a will be sent to probate court when someone dies. But is a requirement that you probate a will?

“Time is Money”

When someone dies, the assets of the deceased are place in an estate overseen by the executor identified in the will. The executor proves the validity of the will and lists the assets for the public record. The beneficiaries of the will are notified and can use the probate court to settle disputes. This is the formal process.

People have the right, authority and power to settle their disputes outside of court. The court process is required when all other avenues of dispute have failed. If there is no will, then probate is probably necessary.

Probate court may take months or years. With an aging population the probate court mechanism may become overwhelmed – many beneficiaries want access to their money immediately. Probate judges can release a portion of the estate funds for short-term needs.

Each state has its own rules regarding probate court and wills. The primary function of a will is to properly divide the financial assets of an estate. A capable executor has the power and authority to properly manage the resources of the estate for the well-being of all parties involved.

“Financial Arrangements Allowing Beneficiaries to Bypass Probate”

Probate takes time. Probate costs money. Nowadays, many financial assets require continuous payments to be made every month. Waiting on a probate court to decide if you can access money, takes the power out of the hands of the beneficiaries. If someone identifies beneficiaries before dying, then they should have the money as soon as possible.

Why pay a percentage of your estate to the probate judge and attorneys, when you can resolve any disputes as grown adults? More people are creating solid financial arrangements to allow them to avoid probate. Before dying, some senior citizens create a payable-on-death (POD) bank account. The beneficiaries can use the money right after someone dies.

Other financial assets which can avoid probate include the following: joint tenancy, tenancy by the entirety, survivorship community property, living trust and irrevocable trust. When a beneficiary has partial rights to an asset, he or she can avoid probate court. A permanent trust where the arrangements cannot be modified by a court can usually avoid probate.

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