When a loved one passes, the last thing
you want to worry about is who gets what. Not only are you in
mourning, but you might also be planning their funeral and/or estate.
While many people are proactive about death by ensuring they have an
up-to-date valid will, others wait until it's too late or never
update their will. Because of this, you may need probate court to
properly distribute the estate.
If you think you may need to go to
probate court for your loved one's estate, check out these four
reasons people use probate.
1. There Is No Valid Last Will and
Testament
Ideally, your loved one will have made
a last will and testament to plan for their estate after their
passing. Unfortunately, many people don't plan ahead, meaning there
is no will to tell the courts how they wanted their property
distributed. If this is the case, you and your family may have to go
to probate court.
In most cases, in California, the
surviving spouse receives everything if there are no surviving
children involved. If there are children, the estate will be evenly
distributed between the spouse and children. In some cases, the will
may be perfectly valid but insufficient because it doesn't list all
the assets. This is common if the will hasn't been updated in a long
time.
2. There Are No Listed Beneficiaries
Depending on whether or not there is a
will (and what it says), there may be problems if there are no
beneficiaries listed on life insurance policies, retirement plans,
etc. For example, your loved one may have excluded their life
insurance policy from their will, assuming the insurance carrier
would pass the money to their heirs. However, if they forgot to list
a beneficiary, you may need probate court.
If there are beneficiaries but the
information hasn't been updated in a long time, it's possible the
beneficiaries have also passed away. Again, this will require probate
to determine who gets what.
3. Someone Contests the Will
Unfortunately, even if there is a will,
someone may contest it. One common reason to contest a will is the
signature. If the signature doesn't match your loved one's usual
signature, and/or there were no witnesses who signed the will, the
will may be contested. In fact, if there is any suspicion of fraud at
all, the will can be contested.
The will may also be contested if your
loved one was not in the right state of mind at the time of signing
the will. This can happen with elderly loved ones who may be
suffering from cognitive impairment, such as dementia. However, even
perfectly healthy people can be coerced or be under the influence of
alcohol or drugs at the time of making and signing the will.
4. There Is Real Estate to Transfer
In an ideal world, the entire estate is
liquid cash, which can be easily distributed, but that is often not
the case. If there is real estate to transfer, you may find yourself
in probate court. If someone else, such as a spouse, also owns the
property, you may not need probate, or you may only need it to remove
the deceased's name from the title.
If your loved one owned the property
solely, and there is no will or the will is insufficient, you may
need probate to transfer the property and determine who gets the
property. You may be able to avoid probate if the property was held
in a living trust but a new deed will be needed to transfer the
title.
If the will is missing or insufficient,
probate court may be the best way to properly disperse the assets. If
you would like to know more about probate court or how to avoid it
before your loved one passes, contact
us
at The Law Office of Carla D. Allen today.
