Why do wills go into probate

The rules of intestacy set out who can apply to administer the estate with a Grant of Administration. Without a Will deciding how to pass on the assets, the administrator distributes inheritance according to the rules of intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules. Visit our page on intestacy rules and estate administration to find out more. You can also give us a call on and we can advise on how we could help.

You can change a valid Will, but you can only make changes to the share of the inheritance that it has given you. For example, you could:. You will need to apply for a document called a deed of variation, or a deed of family arrangement, to do this.

Changing a will after someone dies can be a tricky process. Contact our probate solicitors on if you need advice and we can guide you through the process. If the deceased has left a valid Will, the beneficiaries of their estate will be named in the Will.

If there is no valid Will, the beneficiaries will be chosen according to the intestacy rules. Beneficiaries have a right to information during the probate process.

They must keep accounts for the estate and show them to beneficiaries when asked. Beneficiaries can take legal action against an executor if they breach these rights or if the executor is otherwise mismanaging the estate. This data will only be used by Irwin Mitchell for processing your query and for no other purpose. Founded in Sheffield in , Irwin Mitchell has always been a bit different. Our advisers really get to know the people and business that we help.

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What Is Probate? The executor's first task involves locating and taking possession of all the decedent's assets so they can protect them during the probate process. This can involve a fair bit of time and sleuthing.

Some people own assets they've told no one about, even their spouses, and these assets might not be delineated in their wills. The executor must hunt for any hidden assets, typically through a review of insurance policies, tax returns, and other documentation. In the case of real estate, the executor is not expected to move into the residence or the building and remain there throughout the probate process to "protect" it.

But they must ensure property taxes are paid, insurance is kept current, and any mortgage payments are made to prevent foreclosure so the property isn't lost. The executor might literally take possession of other assets, however.

They might place collectibles or even vehicles in a safe location. They'll collect all statements and other documentation concerning bank and investment accounts, as well as stocks and bonds. Date of death values for the decedent's assets must be determined and this is generally accomplished through account statements and appraisals.

The court will appoint appraisers in some states, but in others, the executor can choose someone. Many states require that the executor submit a written report to the court, listing everything the decedent owned along with each asset's value, as well as a notation as to how that value was arrived at. The decedent's creditors must be identified and notified of the death. Most states require the executor to publish notice of the death in a local newspaper to alert unknown creditors.

Creditors typically have a limited period of time after receiving the notice to make claims against the estate for any money owed. The exact time period can vary by state. The executor can reject claims if they have reason to believe they're not valid. The creditor might then petition the court to have a probate judge decide whether the claim should be paid. Valid creditor claims are then paid. The executor will use estate funds to pay all the decedent's debts and final bills, including those that might have been incurred during the final illness.

The executor will file the decedent's final personal income tax returns for the year they died. They'll figure out if the estate is liable for any estate taxes, and, if so, file these tax returns as well. Any taxes due are also paid from estate funds. This can sometimes require liquidating assets to raise the money.

Estate taxes are usually due within nine months of the decedent's date of death. When all these steps have been completed, the executor can petition the court for permission to distribute what is left of the decedent's assets to the beneficiaries named in the will. This usually requires the court's permission, which is typically only granted after the executor has submitted a complete accounting of every financial transaction they've engaged in throughout the probate process.

Some states allow the estate's beneficiaries to collectively waive this accounting requirement if they're all in agreement that it's not necessary.

Otherwise, the executor will have to list and explain each and every expense paid and all income earned by the estate. Some states provide forms to make this process a little easier. If the will includes bequests to minors, the executor might also be responsible for setting up a trust to accept possession of these bequests because minors can't own their own property.

In other cases and with adult beneficiaries, deeds and other transfer documents must be drawn up and filed with the appropriate state or county officials to finalize the bequests. An intestate estate is one where the decedent did not leave a valid will. It may be that they never made one. Or, the will is not accepted as valid by the probate court due to an error in the document or because an heir successfully contested it.

The most significant difference is that in the absence of a will that makes their wishes known, the decedent's property will pass to the closest relatives in an order determined by state law. In many cases, it's possible to avoid probate , depending on state law and the types of assets involved. For instance, spouses may jointly own property as tenants in common. When one spouse passes, the other may become the sole owner of the property.

Insurance policies and investment accounts typically allow the naming of beneficiaries. In this case, beneficiaries are entitled to the assets in these accounts without going through probate.

Revocable living trusts pass to the successor trustee named in the trust documents. Any property that was transferred into the trust prior to the trust maker's death will not be subject to probate. Legal Information Institute. Federal Trade Commission Consumer Information. Virginia Law. During the probate process, all your assets must be located and assessed for total value. Once that is done, taxes and debts are paid and the remaining value of the estate is distributed.

In cases where there is no Will meaning your estate is intestate , this process obviously becomes more complicated.

Because there is no documentation stating your final wishes, it is up to the courts to handle proceedings and make all decisions for you. Unless you properly plan, your estate will go through the probate process. That said, the process is greatly simplified, or potentially even totally avoided, when you have a solid Estate Plan in place. The more planning you do now, the easier it will be on your loved ones after you pass. One way to lessen the burden and headache of probate, or even avoid it altogether, is by creating a Trust.

Any assets you place into your Trust will bypass probate. This Personal Representative will handle all the things an Executor would if a Will had been present. Some assets and property in an estate will always go through probate, while others like those in a Trust will not.

If you do not have a Will, everything you own will go through probate court. The following will always go through the process, regardless of what your Estate Planning states. Any inheritance where the Beneficiary predeceases the giver: If a named-beneficiary passes away before you do and you fail to update your Will, the courts will become involved in deciding how to settle this part of your estate.

Household items such as appliances, clothing, furniture and other general items could fall into this category. If your Will names these items and appropriately states your wishes, you can eliminate probate. Keep in mind, if your Will makes your wishes clearly known, the process becomes simplified.

Certain assets and property will not go through probate. By properly planning, you can help avoid probate for any of the following. Items that have a Beneficiary named: Naming a Beneficiary on an asset means you can avoid probate.

For example, life insurance policies have named Beneficiaries, so proceeds go directly to them without having to go through probate.

Items placed inside a Living Trust: Because a Trust owns the items inside it, when you pass away, anything in your Trust can go to your Beneficiaries as specified by the Trust, thus avoiding the probate process. Note that some states do not allow real estate to be titled this way. There is no need for the property to go through probate in this case.

How the process of probate plays out in court largely depends on whether or not you have a Will. The biggest difference is that when no Will is present, the court will appoint someone as a Personal Representative to oversee distribution of your belongings. In the absence of a Will, only the beginning of the probate process will differ. Once a Personal Representative is appointed, the rest of the process will be the same. Someone, usually your Executor or lawyer, will inform the court of your death and submit a copy of the death certificate to start the probate process.

Your Will must be authenticated by the court to ensure it was properly signed and dated in accordance with the law. Once this is done, your Will is considered valid. In cases where a Will is present, a judge formally appoints the person you name as Executor only in very rare cases would the court overturn your choice. The Executor then oversees the process and settles your estate. If there is no Will, the court will appoint a Personal Representative for this role.

Usually this would be your next of kin. A Personal Representative acts exactly as an Executor would. Posting a bond protects Beneficiaries against potential errors an Executor or Personal Representative might make during the probate process. Bonds may be quite costly, but your estate will pay for it.

Bonds are not always necessary, as some states will waive them if your Executor or Personal Representative is also a Beneficiary of your estate. You can also include a request to waive a bond in your Will. Trust and Will knows the probate process inside and out, and our legal experts have taken the time to ensure that you address everything you need to in one place.

This is likely the biggest task most Executors or Personal Representatives will undertake.