Why Do Wills Have to Be Probated?
The official way our society transfers the property of a dead person to living people is through the probate process.
There is an entire court system set up in every county in the United States to handle the probates. You’ll find that the probate court is a separate area of the court house from the civil and criminal courts. If each courthouse has a separate area for probate, probate has got to be a huge part of the system’s burden. When property is passing from a deceased individual to a living individual, it will have to go through the probate system unless it can be transferred using some probate avoidance trick.
The "legal trick" of choice for most couples, who want to avoid probate, is joint tenancy with rights of survivorship.
Joint tenancy is a type of ownership vehicle that probably shouldn’t be used, even between a husband and wife.Joint tenancy is a direct path to asset protection disaster and tax disaster.Oh, you might avoid probate, but you are going to pay dearly just to try and avoid probate.Other legal "tricks" including life insurance policies, retirement accounts (401(k)s, IRAs, POD accounts, etc will avoid probate.
Assuming there will be a probate, you certainly need a will to express your desires to the court. If you don’t write your own will, you’ll get the state’s will. If you haven’t seen your state’s will, you need to take a look, because I don’t think you are going to like it. You’ve got to prepare at least a simple will for yourself. After you die, only the property that requires your signature to make a transfer will have to be probated. You need to sign to transfer ownership of bank accounts, safe deposit boxes, brokerage accounts, car titles, and of course real estate.
After you die, when your kids want to open your safety deposit box, who can sign? If the kids want to sell your house, who signs the deed after you die? Oh, the oldest daughter can move into the house and live there for years with no problem, but, when she goes to sell the house there will be a problem. When the title company sees your name on the deed, no matter who lived there or for how long, the title company will ask for you to come and sign the deed. If you’re dead, you’re not going to be signing a lot of deeds. Your daughter is going to make the argument that she owns the house. She could even cough up your will that gives the house to her. When all the dust clears, the title company isn’t going to accept her signature. It’s a certainty that the buyer won’t accept her signature.
She is going to have to prove that the will she has is your real last will and testament, when she finally gets in front of the probate judge. Just producing a will isn’t going to be proof enough for the probate court. The probate court will demand proof. She is going to have to prove to the court that you have paid off all your creditors and don’t owe anybody any money. This requires publication in papers to “smoke out” any creditors your daughter may not know about, and notice to the creditors she actually knows about.
When your daughter has proven everything to the court’s satisfaction, she will be given a paper called a "letters testamentary", and the judge will authorize her to sign your name on the deed to make the transfer. The letters testamentary will be recorded along with the title by the title company.
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