What to Do When Someone Dies Without a WillWhat to Do When Someone Dies Without a Will

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What to Do When Someone Dies Without a Will

Hello, my name is Kerry. Last year my mother died suddenly. When we went through her papers, we discovered she didn't have a will. My mother had been married to another man before she met my father and I had a couple of step brothers. Unfortunately, they turned up on our doorstep and started to demand that we hand over my mother's life savings to them and their family. I contacted a lawyer who specialises in probate law. She talked me through my case and explained how we would defend it in court. Thankfully, the matter was resolved to my satisfaction and I could start to grieve for my mother. I decided to start this blog to help others who have a contested will on their hands.

When is probate necessary?

When is probate necessary? How can I avoid probate? These are some of the questions that the surviving family members or executors have when a testator passes away. Probate is basically the transfer of the testator's assets once they pass on.  Different jurisdictions have different probate laws so you would want to talk to a probate lawyer about whether or not probate is necessary in your particular case. This article highlights four main reasons when probate may be necessary.

  1. Invalid will

The probate process may be needed if the will is declared null and void by the probate court for any of the following reasons:

  • Poor execution because the will was not written clearly and there was no witnesses at the signing of the will.
  • The decedent was not in the right frame of mind when executing the will and thus declared mentally incompetent.
  • The decedent was subject to undue influence by other interested parties when drafting the will.

     2. Absence of a last will

If a person dies while not having a will in place, then the probate process comes in to ensure distribution of the decedent's assets and paying off taxes and debts to creditors. Probate is the only way to do this in the absence of a last will.

    3. The deceased exclusively owned the assets

In the event that the deceased solely owned the assets, then oftentimes the assets will be subject to probate in order to get transfer them from the decedent's name and into the recipient's name.

    4. Tenancy in common

This is a type of property ownership involving two or more persons. The tenants don't have the same ownership interest, meaning one can own seventy five percent share in the asset while the other enjoys twenty five percent ownership rights. In contrast to other types of property ownership, each owner in tenancy in common can transfer or sell their shares to other persons or beneficiaries without seeking the permission of the other owners. The rule of survivorship doesn't apply if a property is owned under tenancy in common. This means that probate is necessary to ensure that the decedent's share of the assets is fairly distributed to the named heirs or beneficiaries.

In conclusion, if any of the above-mentioned reasons apply to your situation, then you can be sure of the need to undergo probate. You can hire a probate attorney to represent you in probate court.