What is Probate?

In short, probate is the transfer of person’s assets after they die. Probate is the legal process of distributing the assets and estate of a deceased person. This includes resolving all issues of probate property like taxes, insurance, title, and paying creditors for any outstanding money owed by the deceased. Probate is usually applied to large estates or significant sums of money. Assets eligible for probate varies from state to state, country to country. You have to check for specific probate laws or with a probate lawyer in your region to determine if the deceased’s assets were significant enough to warrant a probate.

What is Probate Court?

Probate court is a surrogate court that interprets the will and appoints the executor. Probate judges the validity of claims made against the estate through heirs and beneficiaries as well as taxes and debts. Further reading about probate laws is available at ObituariesHelp.org

When is Probate Required?

There really are only five reasons why you’d have to go to probate court to either make your claim on the deceased’s assets or to prove that you are a legal beneficiary. If any one of the following applies to you or to the deceased, then you might want to consult a probate attorney.

1. Probate court is necessary if the will is deemed invalid for one of these reasons:

Improper Execution – it wasn’t written clearly or it was not a legal will. Mental Incompetence – the deceased was not mentally competent when he or she made up the will so their decisions are questioned. Undue Influence – the deceased was under duress when he or she wrote up the will.

2. Probate is required if the deceased didn’t have a Last Will and Testament. If there is no will, then there has to be a legal and equitable probate court process for distributing the deceased assets and for transferring the title of probate property. The only way to do this is with probate.

3. Probate is required if the assets were owned solely by the deceased. If there were no other owners or designates of the property or asset, then in most cases the property will have to be probated to get it out of the deceased’s name and into the beneficiary’s name.

4. Probate is required if the assets were owned as a Tenant in Common or Joint Tenancy. What this means if the deceased owned property jointly with another person, such as in the case of a common law marriage, then probate is required to ensure that the deceased’s share of the property is properly distributed to legal heirs.

5. Probate is required if there are no designated beneficiaries or if all of the beneficiaries have predeceased the decedent. In the case of life insurance policies, retirement funds or certain savings accounts, beneficiaries are usually named. But if all the named beneficiaries have passed away or if the deceased didn’t name beneficiaries, then probate is required to transfer the money or title to the beneficiaries.

One thing to remember about knowing when is probate required?

Probate is required if there are significant assets to be distributed or creditors to be paid outside of what is legally stated in the will or if there is no will at all. If any of these five reasons apply to you or your situation, you can expect that probate is required and you’ll have to appear in probate court. Read more about probate laws at ObituariesHelp.org.

Melanie Walters recommends ObituariesHelp.org for Probate Law information, funeral planning help, obituaries, genealogy resources, guides to building a family tree, and written examples of eulogies.

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? The mystification of writing a will ? people shy away from it fearing a task as ?complicated? as drafting a will, as the legal establishments have people believe, should not be attempted by novices.

? The fear of lawyers ? others are wary of lawyers and the legal system, apprehensive of the fees that may be charged.

? Lurking behind most people?s inability to make a will is the superstitious (and irrational) belief that somehow thinking of, or making a will may hasten death.

A will, under no circumstance, is meant to be frightening. Its associated legal requirements are not as complex either as many people fear. A will is merely an acceptance and a reconciliation with the laws of nature, a responsible control over crucial parts of ones families life.

What Exactly Is a Will

A will is a legal document that takes effect after the death of a testator or the person creating the will, in which he makes a disposition of his personal and real property. Additionally, the will can only be revoked by the testator him or herself.

Who is Eligible to Make a Will

Anyone who is 18 years or older and of ?sound mind? is eligible to make a will.

Why is it so Important to Make a Will?

A will determines who will benefit from a testators estate, instead of it being consumed by the laws of intestacy. With the inheritance tax trap overwhelming an ever-increasing number of estates, a will lessens the impact of extraneous tax. Since the major portion of married testators bequeathing their will to their partners, no inheritance taxes apply in the case. Life has to take its course, and at the passing away of the testator, his or her beneficiaries or next of kin inherit the willed estate.

Wills are defined differently within different jurisdictions, some requiring notarizing or witnessing, besides other formal procedures, while others may allow enforcing a holograph will.

Types of Wills

?Conventional/typed written wills

This is the type of will most familiar to courts and legal settings. It is typed and signed upon preparation.

?Pour Over Wills

A pour over will is a type of a conventional will that names a ?living trust? established by the testator to receive the property subject to the will.

?Statutory Wills

Authorized by state laws in New Mexico, Maine, Massachusetts, Michigan, California and Wisconsin, a statutory will is a printable, fill-in-the-blanks/check-boxes will, being an excellent option in theory (due to their affordability and reliability), but falling short in practice. The options they provide to people are limited in regards to how property can be left. And due to their standardized form, they cannot be customized to fit in additional user-defined clauses.

?Stationary Store Wills

Most legal supply stores or stationery stores provide a printable will form which can be completed by the testator. Alghough being effective in terms of offering an easy option to will makers, they are oversimplified, and fall short in terms of providing adequate instructions.

?Handwritten Wills

Holographic or unwitnessed, handwritten wills are valid in a minority of US states. The testator must write, date and sign them entirely by him or herself. This type of will is not recommended, since probate courts scrutinize them in detail after the death of a testator since they are deemed less reliable than witnessed wills.

?Joint Wills

A joint will is that which is made by two different individuals and serves as the will of both. In a join will, each of the two people leave their possessions and property to the other. The will then specifies what follows upon the death of the second person. A join will is a contract between two people, both consenting for a revocation to be effective.

While drafting a will, it may prove a more viable option to do so through a trained solicitor or will writer who will ensure its legal validity, tax efficiency and structural requirements as per client request. Although being a more expensive alternative then perhaps doing it oneself, a trained hand will ensure no errors are made.

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It is safe to say that Michael Herbert Dengler was aware of this when he undertook legal action in 1976 to undertake a new identity. It is equally safe to say that he had his reasons for wanting to change his name to ?1069?. Indeed, they are listed in the petition, but to list them here would take too much space. Suffice it to say that his reasons were personal philosophical ones that he felt necessitated the change. The Supreme Court for the State of North Dakota was, however, unwilling to allow this, opining that the use of a number as a name could be excessively confusing. As a compromise solution, the Minnesota Supreme Court offered the possibility of ?Ten Sixty-Nine? three years later when Dengler tried again, a compromise he accepted.

In 2008, a nine-year-old girl had different reasons for asking a court in Wellington, New Zealand, for a name change. Having been christened ?Talula Does The Hula From Hawaii?, the girl felt somewhat self-conscious about her name, which caused her to be teased at school. As a consequence of her action, the unfortunate Talula was made a ward of court so her name could legally be changed. What to? Well, that information seems thin on the ground, perhaps specifically because of the publicity the case attracted ? so when the girl is asked her name and tells the asker her new name she is not instantly greeted with ?Oh, hi Talula Does The Hula From Hawaii?. Perplexingly enough, the same court has ruled that names such as Midnight Chardonnay, Number 16 Bus Shelter and even Violence are permissible. At least they blocked ?Yeah Detroit?, ?Fat Boy? and ?Sex Fruit?.

Court decisions often differ between US states. For instance, Ohio resident Robert Handley asked in 2000 to be allowed to change his name to Santa Robert Clause, because of the existing legend of Father Christmas. A year later, however, the Utah Supreme Court was less restrictive when David Lynn Porter petitioned them for the right to be known as just plain Santa Claus, arguing that he had the right to select the name under which he went ?within very broad limits?.

Those limits were presumably the ones that prevented Russell Lawrence Lee from changing his name to ?Misteri N*****? (author?s censoring), where the second ?I? of the first part is silent, and the second part is a well-known racial epithet. Though Lee himself was African-American and his use of the word in question was therefore judged not to be of insulting intent, the court ruled that Lee could call himself whatever he liked in conversation, but would not be given the court?s permission to legally go by that name.

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1. In the aftermath of a divorce, people often want to change their name back to the name that they went by before they were married. It may be in order to remove any aspect of their ex-spouse from their lives in the case of an acrimonious split, or it may be simply to ensure a fresh start and a point from which to relaunch your life. Just as taking your spouse?s name marked a new era, so will taking your old name back.

2. Equally, getting married is a time when you may change your name, usually to that of your new spouse. Some people, however, take the opportunity to keep their old name and add that of their spouse, in order to reflect the joining of two family lines. This is also a way of avoiding the awkwardness of telling one?s family that they have chosen to take a different name. Either way, making the decision to change one?s name marks a new chapter in life.

3. On immigrating into the country, an individual with a specifically non-American name may well choose to take the step to adopt a more Americanized name. This is a step that is often taken at the stage where the individual applies for naturalization, and during the interview that takes place as part of this process they may choose to prepare a petition for name change. The name change will become final once the federal court passes the application for naturalization, and can give the individual the chance to be treated as an ordinary American.

4. Changing one?s name does not need to be the result of a change in legal circumstances. It may be the case that you wish to make a break with your name, due to circumstances that make living under the current name difficult. This may be the result of major adverse publicity for yourself or for another person with a similar or identical name, which could cause you to be treated differently and unfairly. For example, there are very few people in the world today living under the name ?Hitler?.

5. People may change their name for business reasons. The motivation behind this can vary, but as an example one might feel that a name which is also held by a well-known individual operating within their industry, or in one that is at odds with their own, might cause an adverse effect on their business. It is unlikely that one will be able to convince a court to agree to a frivolous name change however, so it is wise to be cautious.

Disclaimer: This article is for informational and entertainment purposes only, and should not be construed as legal advice on any subject matter.

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