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Probate Last Will is required despite what most people think

- Did you know that even if you have a last will and testament your estate still must go through the probate process. As you guys can imagine we're always trying to find new topics for videos to keep it interesting here on our channel. So our topic today comes from several phone calls really over the last month or so that we have been getting from people inquiring about probates.

And the phone call goes something like this, they call in asking about how to probate their loved one's estate. They will inevitably say during our conversation that, well, my loved one had a last will and testament so I guess we really don't even need to go through the probate process. Guys, nothing can be farther from the truth.

The truth is whether your loved one had a last will and testament or nothing at all their estate will most likely still need to go through the probate process. And here are the reasons why. First, if your loved one had real estate, like a house or a rental property, a building, land or even mineral rights, there's really only two ways to transfer real property. And that is by some sort of deed while they're still alive, in other words, they do a transfer to their children while they're still alive.

They quick claim or they do a warranty deed from themselves to their heirs during their lifetime. But if they don't do it during their lifetime, then that real property, that real estate has to be transferred through the probate process. And that means going through probate, exactly what I just said. All real estate that has a title. needs to be transferred from one person to the other through the probate process. So it really doesn't matter whether your loved one had a last will and testament regarding whether or not that asset needs to be probated. Does that make sense?

What really happens is if they have a last will and testament then we probate their estate and their assets are distributed according to the terms of that last will and testament. Which is great because then your loved one is telling you, the executor or the personal representative of the estate, exactly who they want to have their real estate.

However, if they don't have a last will and testament then depending on what part of the country you're in you need to look at your state's intestate succession laws. And those intestate succession laws will say if somebody does not have a will, a last will and testament, then their real property shall be distributed according to these terms. And it lists them out depending on whether or not they had kids, depending on whether they're married, depending on whether their parents still are alive. It lists out all the different scenarios of how their property should be distributed.

That's why it's so important that if you do have even just a house is what people say, all I have is a house, I don't need to worry about it. Even if you have just a house you need to make sure that that house goes to the person or to the people that you want your house to go to. And that's why it's so important to have a last will and testament or a revocable living trust centered estate plan like you always hear me talking about.

The other reason you'll have to go through the probate process, Even if you have a last will and testament is bank accounts or financial accounts. Unless those specific bank accounts and financial accounts have a pay on death designation or some type of beneficiary designation that tells the bank where that money should go then the banks are going to want to have an order from a court that says, this person or that person gets the money. Which means you're gonna have to go through the probate process to distribute those bank accounts.

So if you have a last will and testament your last will will say, Johnny and Sally get everything 50 50. So that might mean they'll get half of the real estate each, like we talked about earlier, and then half of the bank accounts or whatever money is in those bank accounts. If there is not a last will and testament like I said earlier regarding the real estate, you go to your state's intestate succession laws and the court makes a determination based on those laws who gets your assets. So you may have wanted Johnny and Sally to each get half of your estate but once a judge looks at intestate succession laws because there's no last will then somebody totally different may actually end up inheriting your estate.

The bottom line is if you have a last will and testament, or even if you don't, your estate still needs to go through the probate process. And that's why I tell you guys over and over again, that if you don't want the court deciding or you don't want your estate to have to go through the probate process, then you need to have a revocable trust centered estate plan. And if you title everything correctly and everything is in your revocable living trust then your estate will not have to go through the probate process.

I know I've thrown a lot at you today so that's why we've prepared our free guide on estate planning. I'll put a link to it in the description below and in the comment section below that so that you can download it and get started in the right direction. And to help you out even more watch this video up here and this video up here. If you enjoy this video then, guys, please smash that subscribe button and click on the like button. And also click on that little bell so you'll get notified every time we post a new video. Have a great day and an awesome week, and as always, thanks for watching.


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About the author 

Cortes Law Firm

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