Tapuriah Jain & Associates

PROBATE

WHAT IS PROBATE?

A probate is a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person's will or the estate of a deceased person without a will. The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person's estate, and finally distributing the assets of the estate to beneficiaries named in the will or determined as such by the executor.

How Probate Works?

Probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. When a property owner dies, his assets are divided among the beneficiaries listed in his will. In some case, the testator or deceased does not leave a will which should contain instructions on how his or her assets should be distributed after death. Whether there is a will for guidance or not, the assets of a decedent's estate may be required to go through probate.

What are the advantages of a Probate?

1. It helps protect small estates.

2. It gives direction to cases where there is no will in place, so that the right beneficiary gets the testator’s inheritance.

3. The probate process is beneficial to those want to make the distribution of the will public.

4. A probate gives you the chance to close out all creditors to the estate within a 90-day period.

5. It can use used as a tool to challenge a creditor claim in court if you think that the creditor has falsely made a claim.

6. A probate offers the court the opportunity to handle a disputed will.

7. Probate of a will establishes the authenticity of will from the death of the testator and shows the executors legal heirs to the content of the will.

Application for Probate

A probate is issued with reference to Section 57 and Section 213 of the Indian Succession Act. The probates are granted to the executor or executors (in succession, in case more than one is named), by the High Court, with a copy of the will attached.

One can apply for a probate after seven days of the death of the Testator (or the person who makes the will and is the owner of the property to be distributed).

The application for probate, need to be made with the help of a lawyer or an advocate, to the High Court, under whose jurisdiction the property might fall. Although a lower court may be empowered to supply a probate for immovable properties of a small value, a probate from a higher court is required for high-value immovable assets.

What are the documents required for a probate?

In all applications to the court, documents have to be submitted. For a probate, along with the application, you will need to submit the following documents:

1. A copy of the will, if there was one created.

2. The municipal death certificate of the testator.

3. A letter stating that the testator was off sound mind, when he or she made the will.

4. Proof that the will has been executed by the testator.

Probate Without a Will

When someone dies without a will, those left behind must figure out how to transfer or distribute the deceased person’s property. This often requires going to probate court. Despite the negative publicity probate receives for being complicated and expensive, there are benefits to going through probate without a will.

Benefits of Probate When There’s No Will

Probate court provides a final decision to many unanswered legalquestions that arise when you die without a will. So here’s why you may want to go to probate without a will:

1. Cuts Off Creditor Claims: After someone close to your dies, the last thing you want is call from debt collectors. Depending on the laws of your state, beginning probate can reduce the time creditors can file claims to as few as three months.

2. Resolves Conflicting Claims to Property: Inheriting property doesn’t always bring out the best in people. Probate doesn’t guarantee heirs won’t litigate disputes over property. But intestate succession laws applied by the court to distribute property can give closure to some disputes. Generally, your heirs include your surviving spouse, siblings, aunts and uncles, nieces, nephews, and distant relatives. The order of who takes first in intestacy is governed by state law. When no relatives can be found, the entire estate goes to the state.

3. Transfers Title: Unless real property is held in a trust or some form of joint ownership, it typically needs to go through probate to transfer the name on the title.

IS PROBATE NECESSARY?

Whether probate is necessary depends on what property the decedent owned and how it was held, and on the law of state in which the decedent died and the laws of any states where the decedent held property.

In general, the probate process clarifies issues in a will and resolves any challenges to the distribution of funds of an estate. The type of probate needed depends on the size of an estate. Generally, it is necessary to go through probate or, in the case of smaller estates a less formal procedure under the general supervision of the probate court, before the deceased's property can be legally distributed. Without probate of a will, complicated legal issues can arise.

Probate Is Necessary Even with a Will

The first major issue to be resolved through the probate process is the clarification of title for the property of an estate. 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 including bank accounts, CD accounts, pension accounts, and the deceased’s personal property, like jewelry, furniture, and artwork. Probate not only distributes property, but also results in a legal transfer of title to that property. 

For example, a family member, such as an aunt, passes away and leaves her home to a nephew, the probate court can order the issuance of a title put in the nephew's name, who can then legally manage the property. However, until the will is probated, that title is potentially clouded as it has not been legally transferred.

Common Reasons Probate Is Necessary

If there was no will, probate is necessary to determine the beneficiaries and to distribute the decedent's assets and title to property.

A valid will exists. As discussed above, in order for the assets of an estate (excluding some smaller estates) to be properly distributed to the named beneficiaries, a valid will must go through 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.

In some cases, an institution or bank may waive the requirement that an estate be probated before money in an account is released if the beneficiary is the principal heir-at-law (person legally entitled to the real property of the deceased), all other possible heirs-at-law will have signed waivers and authorizations to pay the money to the beneficiary, and have agreed to repay the bank should any claims be made. But that's the exception rather than the rule for nationally-operating institutions.

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 beneficiaries.

When there are no beneficiaries named or they have predeceased the decedent, probate is necessary. 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 beneficiaries' names.

Probate is required when a decedent owned property in joint tenancy (also known as a Tenant-in-Common). In the case that a decedent owned property with others, probate must be used to remove the decedent's name and transfer his or her share of the property into the names of the appropriate beneficiaries.

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PG - 20122019