How, why and when is probate a necessary legal process? Does this apply to all states?
Probate is used to legally transfer title of the deceased (decedent's) property to his or her heirs and/or beneficiaries. If there is no property to transfer, there is typically no need to go through the process of probate. Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of their property. Probate also provides a way to pay outstanding debts and/or taxes connected to the estate, for setting a deadline for creditors to file claims (which stops unpaid creditors from pursuing heirs or beneficiaries) and for the distribution of the remainder of the estate's property to the decedent's legal heirs.
During probate certain members of an estate might insist on contesting the Will. This is allowed by the courts. Probate is also necessary to validate the Will and ensure that the Will was actually written by the decedent and that the decedent was 'of sound mind' when he or she created the Will. Even though the decedent may have made it clear in the Will who the beneficiaries are, certain relatives may want to question the validity of the Will, and have the legal right to do so. This is an issue that would come under the probate process. If the decedent left a great deal of cash, bonds, stock and/or real estate in the estate, there is always the possibility that distant relatives may enter into the picture and claim a piece of the estate, whether the Will names them as heirs or not.
Probate is used to make sure the Will was not written or dictated under adverse influences or that the Will is not a fraud; that the Will was legitimately executed by the decedent - and that he or she was of sound mind when he or she wrote or dictated the Will. When determining the validity of a Will, the court must establish if the Will is actually the most up to date Will, and that there is not a more recent Will that would then invalidate the old Will. Probate is necessary for many reasons. It is also used to ensure that the estate left by the decedent is distributed fairly and legally, in agreement with the deceased's requirements.
During the probate process, the value of the estate and assets of the decedent Will be confirmed as well as any liabilities the decedent may have: unpaid taxes, outstanding loans, mortgages and other debts. Probate allows legitimate creditors to file a claim to regain money owed to them. Probate guarantees that any assets, cash, bond, stocks, jewelry, valuables, real property, land, or business interests left to beneficiaries in the Will are legally reassigned to the beneficiaries during probate.
In short, probate guarantees that the estate is distributed fairly and properly, as dictated by the decedent's Will.
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