WHY IS PROBATE NECESSARY?

The primary function of probate is to transfer title of the decedent's property to the proper heirs and/or beneficiaries. If there is no property to transfer, there is generally no need for probate.  And as discussed briefly below, some property may pass outside of probate.

The probate court helps ensure that the decedent’s property goes to the people that the decedent wanted it to go to, or who are entitled to the property under intestate laws.  This is true even if there is a will, which clearly sets forth the decedent’s wishes.  This is because the probate court provides an opportunity for others to object to the will, and then to determine if the will is valid since it’s possible that:

  • the will was the result of fraud, mistake, duress or undue influence;
  • there was a later will;
  • the will was made when the decedent was not mentally competent to make a will;
  • the will was not properly executed; or
  • the will is not fully valid for some other reason (such as a pre-existing contract).

Probate also provides a mechanism for proper payment of the decedent’s valid creditors and outstanding taxes, and sets a deadline for creditors to file claims, so that beneficiaries will not have to worry about creditors coming for inherited property years down the road.

However, not all of the decedent’s property need go through probate. Real and personal property which is owned in joint tenancy or as community property with right of survivorship, passes to the surviving co-owners without going through probate, as do assets which go to named beneficiaries, such as a life insurance, retirement assets (IRAs, Keoghs, and 401(k)) or annuities payable directly to a named beneficiary bypass probate.  Money from accounts transfer automatically, outside probate, to the persons named as beneficiaries. Bank accounts that are set up as payable-on-death account also pass to that beneficiary without probate.  If a trust holds legal title to the decedent’s property, that property will also not need to go through probate.