What is Probate and its Proceedings?
Probate is a process in which a deceased’s will is located and authenticated. All of the deceased property, including real estate, is distributed among the beneficiaries named in the will.
If a will is not available, a situation we call ‘intestacy’ arises. The probate rules and regulations of the respective state are followed, and the deceased property is distributed among the deserving beneficiaries, which are typically the deceased’s next of kin or heirs.
Probate proceedings primarily involve four things. First, locating and authenticating the will. Second, informing the beneficiaries named in the will and any other interested parties, for example, any close relatives, including spouse, children, and creditors.
Third, see if the deceased had any unpaid bills or mortgage and pay them off. Fourth, distributing the property among the beneficiaries.
Fifth is to pay the probate court and the appointed lawyer and terminate the case.
Ten Probate and Title Issues You Should Know
A very commonly encountered issue with probate is title issues. From incorrect legal description to automatic transfer of Ownership to co-owner, the following are various issues frequently encountered when dealing with probate and title ownership issues:
1. Deceased had the Sole Ownership
in such a case, the deceased was the only owner of certain property and had no co-owner or transfer on death deed. Here, that estate must undergo the probate process to determine the owner of the assets.
2. Joined Ownership
here, suppose one of the owners passes away. In that case, the property’s title, following the US probate code of the respective state, will pass without any intervention of legality to the surviving owner. No probate is required in such a case.
3. Inadequate and False Legal Description of an Asset in Court Meetings
while transferring a title of a certain property, whether on purpose or whether by accident, if incorrect legal description is presented to the judge, lethal after-effects over the entire transferring process can be expected.
In such a scenario, the judge will order to review all the paperwork multiple times, and a dark, looming shadow will now be cast upon the transferring claims. So, one must check and recheck their legal descriptions of a particular property before presenting in court.
4. Informing all Interested Parties
US law in all states, states to properly contact and inform all involved beneficiaries, whether they are named in the will, creditors, close relatives, or business associates. Failure to any of these can also lead to possible complications sprouting later.
There is always a possibility that someone close to the deceased had their version of a will or a claim to an inheritance they feel must be honored and reviewed by the judge.
Rarely the beneficiary named in the will reject their right to inheritance. A disclaimer of interest must be filed and recorded in the county records in such a case.
5. Missed Heirs and Beneficiaries
A deceased son or daughter resides in another country and hasn’t paid a visit in over a decade.
No communication was present between the deceased and them. Consequently, although rare, the law sometimes misses such an heir or beneficiary and fails to notify them. This might create problems in the long run.
Years later, let’s say that missed heir decided to pay his now-deceased father or mother a surprise visit and is shocked to see someone else enjoying the title of the property that is legally his or hers. Court meetings and title ownership issues have sprung out once again.
Hence, it is important for all legalities involved in the probate proceedings to do a thorough background check on all close relatives, including children, spouses, siblings, spouses from former wives, etc. It is vital to notify them and inform them of the situation.
So, when buying a house, one should do a title search with professional help. They should review the insurance policy and the title commitment to avoid any such complications in the future.
Even if the heir lives abroad and there is difficulty reaching out to them, legal authorities should try their best; otherwise, a potential big drama can be expected in the future.
6. Title Issues in Case of no Will
Intestacy is what we call such a situation. Here, the title of property of inheritance will be allotted to the offspring or siblings and, if none of them are present, to the next closest surviving relative.
7. How Divorce Affects Title Ownership of Deceased’s Property
If the deceased had a will and named their former spouse as a beneficiary and did not renew it, then, in such a case, the former spouse is treated as if they are dead. Alternative beneficiary names are contacted, and the title is passed onto them.
8. Tenants by the Entirety and Title Issues
If the deceased person owned the property with their spouse, then it could have been held in tenancy by the entirety in certain states. The surviving spouse is now the sole owner. No probate proceeding is required for the survivor to take Ownership. (source of the above information is:https://www.alllaw.com/articles/nolo/wills-trusts/transferring-real-estate-after-death.html)
9. Community Property and Title Issues
In community property states, including Arizona, California, Idaho, Louisiana, New Mexico, Nevada, Texas, Washington, and Wisconsin, partners or spouses can hold property in the community, meaning that they both own it together.
Alaska also allows spouses to designate real estate as community property, and Kentucky, South Dakota, and Tennessee allow spouses to create special community property trusts.
In such a case, if one of the spouses passes away without naming any beneficiary, then the property’s title automatically passes to the surviving spouse. BUT, in their lifetime, both spouses have the absolute legal right to leave their half-interest in community property to whomever they desire.
10. Title Issues in Tenancy in Common
It is a rare thing, but sometimes co-owners own a real estate property as tenants in common, for example, if they were siblings who inherited a house from their parents together.
Here too, both owners can name any beneficiary they choose in their will. However, if there is no will, a probate proceeding is necessary to decide the Ownership of that half of the property. Hence, the deceased co-owner’s interest in the property passes to the closest relatives under state law.
To Wrap Up
In conclusion, when dealing with property, especially real estate and its title ownership, one should first decide if the situation requires a probate proceeding or not by contacting some legal personnel, well versed in title issues. While transferring the title, ensure that all legal documents are correct and all interested parties are contacted and informed of the situation.