On some occasions the probate process can be avoided. Typically this happens when assets have been transferred prior to death or proper beneficiary designations have been made.
However, the probate process may be necessary where there is an issue involving the validity of a Will or Trust and/or the terms of the same. There may be an issue on whether the Will or Trust was properly executed or whether the testator or grantor had the requisite mental capacity. If there are issues in dispute, then the probate process will be necessary.
Probate may also be necessary if the decedent did not have a Will or Trust and legal process must be followed in order to transfer title to assets that were not transferred prior to death. Probate is also required where assets were owned solely by the decedent and there were no other owners or designated beneficiaries of the asset. Probate may also be necessary in order to get the decedent’s name off of an asset and into a beneficiary’s name, such as real estate, car, or other assets.
Probate may be required if an asset was owned in a tenancy in common or joint tenancy and there was no designation regarding any survivorship interest for the passing of the same.
To summarize, probate is typically required where there is no designated beneficiary or surviving tenant on an account.