Why Is a Will Probated?
The probate process is the official mechanism our society uses to transfer a deceased person’s property to living people.
There is an entire court system set up in every county in the United States to handle the probates. You’ll find that the probate court is a separate area of the court house from the civil and criminal courts. If each courthouse has a separate area for probate, probate has got to be a huge part of the system’s burden. Any property requiring a transfer signature that passes to an heir will have to pass through the probate system, unless it passes by contract or other "probate avoidance" trick.
The "legal trick" of choice for most couples, who want to avoid probate, is joint tenancy with rights of survivorship.
Joint tenancy is a type of ownership vehicle that probably shouldn’t be used, even between a husband and wife.When you use joint tenancy, you are creating a tax and an asset protection disaster.Oh, you might avoid probate, but you are going to pay dearly just to try and avoid probate. Legal tools, like IRAs, retirement plans, benefit plan accounts, POD accounts, life insurance policies, and others, will avoid probate.Assuming there will be a probate, you certainly need a will to express your desires to the court. You’ll either have to write your own will, or the probate court will use the state’s statutory will. I don’t think you are going to love that will. Please at least prepare a simple will for yourself. A signature is required to transfer the following types of property. You need to sign to transfer ownership of bank accounts, safe deposit boxes, brokerage accounts, car titles, and of course real estate.
Who has the right to sign to get in your safety deposit box once you have died? Who signs the deed, after you die and the kids want to sell your house? She won’t have any problem until she tries to sell the house. Then the title company sees your name on the deed, they will ask for you to come and sign the deed. Of course you are dead and not signing a lot of deeds. Your daughter can make the argument that she got the house after you died. She may even produce a will which says she gets the house. When all the dust clears, the title company isn’t going to accept her signature. It’s a certainty that the buyer won’t accept her signature.
Your daughter is going to have to go through probate with your house. The probate court can’t take her word when she says it is your will. Proof will be demanded by the probate court. Your daughter will have to show the probate court that you didn’t owe money to anybody and that your creditors have all been paid. This will involve notice to the creditors she knows about and publication in papers to "smoke out" any creditors she may not know about.
He will give her a paper called a "letters testamentary" after she has proven everything to the court’s satisfaction. The recordings let the world know that the probate process has been met and the buyer has good title to the property, even though your signature isn’t actually on the deed.
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