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Estate Planning, Probate, Wills and Trusts

Is Probate necessary if there is a Will?

Posted by brian on November 13, 2018
Round Rock Probate Attorney

Probate is the legal process of supervising the disposition of the estate of a deceased person. In most probate proceedings, the will of the deceased is presented to a court, and in the absence of any challenges, is used as the basis for most of the decisions regarding division of property, care of minor children, control of property, and so on.

Wills, estates, trusts and probate are all controlled by state laws and can be subtly different depending on where the deceased lived at the time of their death, where their property is located and whether or not their estate is controlled by a will, a trust or some other legal structure or document.

Basics

Generally speaking, if someone dies and they own property in their own name, their estate must go through the probate process. If there is a will, and it is accepted by the court as a genuine document, it will be used as the basis for most of the court’s decisions regarding the eventual disposition of the estate. One of the key elements in a will is the appointment of an executor, who is for all intents and purposes a trustee of the estate. An executor has the power to act on the estate’s behalf, subject to the orderly processes of the court, naturally.

Exceptions

Attorneys like Justin M. Jackson know some property, such as anything owned jointly between the deceased and a person still alive, will automatically pass to whomever is the survivor. Insurance claims will be distributed to their beneficiaries and any investments governed by joint agreements or transfer-on-death covenants will automatically transfer according to their respective terms. Only in the event of alleged fraud or some other extraordinary circumstance would the probate court become involved in any of the excepted assets.

Disputes

In some cases, the validity or provisions of a will can be contested by various parties including beneficiaries, survivors, creditors or any other person or entity with a real or perceived interest in the disposition of the estate. In these cases, it is up to the probate court to hear such challenges, hold hearings and request evidence and to eventually rule on the merits of each challenge. Some cases can be very complex and involve many different competing parties, which obligates the court to a potentially lengthy involvement and may burden the estate and its executor with considerable legal bills depending on which aggrieved party or parties dispute one another.

Loss of a loved one is never a pleasant experience. While it may seem that probate can be a cruel and disrespectful hassle, the truth is without the involvement of a court, the potential for fraud and outright theft is considerable. As always, you should seek competent legal counsel like Justin M. Jackson who specializes in wills and estates if you are facing a probate case.

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