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Do I need to go to Probate?

By May 8, 2017August 6th, 2019Probate

One of the most common misconceptions is that a will allows you to avoid going to Probate Court altogether. Most times, this is not the case. A person’s will oftentimes serves as a “playbook” for the selected Executor/Personal Representative and the Probate Court to follow after your death.

Issues still must be resolved through the probate process in the clarification of title for the property of an estate. This includes the Real Estate in the deceased’s name. Even if there was a will, all of the property owned by the deceased at the time of death is part of the estate and is subject to probate. This includes assets such as real property, bank accounts, CD accounts, retirement accounts, and the deceased’s personal property, like jewelry, coins, and vehicles. However, until an Estate is opened for the deceased, title to these assets can be potentially clouded if not legally transferred.

Other reasons you may need to go to Probate Court

If there was no will, probate will be necessary to determine the heirs, beneficiaries, and to distribute the decedent’s assets and title to property. If a valid will exists, in order for the assets of an estate to be correctly distributed to the named beneficiaries, the will must be admitted to probate.

Probate is necessary when there are problems with an existing will. Some of these issues may include: the submitted will is not the final version to be considered; there are mistakes in the will or it was fraudulently executed; the will was drafted at a time when the decedent was not of sound mind; or any other challenges to the integrity of the will.

Probate is required when an estate’s assets are solely in the deceased’s name. In most cases, if the deceased owned property that had no other names attached, an estate must go through probate in order to transfer the property into the name(s) of any heirs.

When there are no beneficiaries named or they have predeceased the decedent, probate is necessary to claim the funds. This situation applies to any retirement or savings accounts such as IRA or 401(k) accounts or life insurance policies that would pay out to beneficiaries; if beneficiaries are not named or are all predeceased, the accounts will need to be probated in order to transfer funds or titles into the heir’s or beneficiaries’ names.

The probate process clarifies a will and protects an estate from challenges to the specified heirs and beneficiaries of the estate. Although using probate for a will is an effective, and sometimes necessary process, some matters of a will can be handled without involving a probate court. The strategies available depend on the nature and shared ownership of the property in the estate.

It’s in your best interest to consult with an attorney that specializes in probate or estate planning law to review all of your options available. If you are here in Michigan and have questions about whether you need to go to probate, call Hewson & Van Hellemont, PLC. at 248-968-5200 to review your options.

Bruce Rice

Bruce Rice a graduate of Wayne State University Law School practices Family Law, Estate Planning and Probate Litigation and Administration. View Profile

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