Issue 12.11
Do we have to go through probate if there is a Will? Why can’t we just distribute the assets as the Will says?
Generally, it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased’s property can be legally distributed.
Even if a person dies with A Will, (which is known as dying “testate”), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that
(1) there was a later Will (which, if valid, would replace the older Will), or
(2) the Will was made at a time the deceased was not mentally competent to make a Will, or
(3) the Will was the result of fraud, mistake or “undue influence” or
(4) the Will was not properly “executed”, or
(5) the so-called Will is actually a forgery, or
(6) for some other reason (such as a pre-existing contract) the Will is not fully valid, or
(7) there are other claims against the deceased’s estate that impact what the beneficiaries under the Will would receive.
For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so “clear title” could be given to the new buyer. (Title CAN be cleared on such property, even in difficult and seemingly complex situations. For advice on how to handle property that needs the title cleared, call your attorney.)
Similarly, few outsiders would enter into any other transactions involving the deceased person’s property before the Will is “admitted to probate” and/or someone is lawfully appointed to act for the estate.
Unnecessary as it may seem, probate proceedings really do resolve issues that may cause tremendous hardship if left unattended.
Jeffery J. McKenna is an attorney licensed in and serving clients in Utah, Nevada, and Arizona. He is a partner at the law firm of Barney McKenna and Olmstead, and founding member of the Southern Utah Estate Planning Council. He can be reached at jmckenna@barney-mckenna.com or (435) 628-1711.