How Do We Know if We Need to Go to Probate?

Q: A loved one recently passed away and we are not sure how to handle the real estate left behind. How do we know if we need to go to probate?

A: Often-times families are left with property due to a death of a loved one which is only transferrable through a Probate Court proceeding. Sometimes the family can legally access and use the property without going to probate

This often occurs where other persons are part owners of the property but there is no automatic right of survivorship transfer of title on the death of a co-owner. This most often happens with real estate.

Family members continue to live in or rent the property out with no apparent adverse consequence. At some point they go to sell the property and find that they cannot pass a clear and good title. They then have to scramble to clean up a mess before the buyer moves on to buy another property. Additional co-owners can also die in the meantime causing further complications. For these reasons kicking the can down the road is not the way to go.

These problems can be prevented with effective probate avoiding devices such as trusts, various forms of deeds, or a combination of both, as circumstances dictate. If the death has already occurred, a probate proceeding should be commenced immediately to transfer title to the appropriate persons who can then institute preventative measures to provide non-probate transfer when they die.

An elder law, estate planning and probate attorney can be very instrumental in putting these measures in place and should be contacted immediately to assist in this endeavor.

Michael Kelly is an attorney whose practice focuses on estate planning, elder law, special needs planning, and probate as well as tax planning and return preparation. Kelly works with older adults and families to get their personal affairs in order, regarding legal, financial and long term care matters.  His practice includes an adult care advisor who assists clients by connecting them with resources, helping coordinate care, and with many other issues. Mr. Kelly can be reached at (623) 628-1110, email: contact@kellylawandtax.com.