Q: My mom's will had language that indicates that we don't need to do probate. Do we have to anyway?
The language:
In Article VI, C Mom's will says "I authorize and empower my Personal Representative to seland transfer any or all of my property, real and personal as I the discretion of my Personal Representative may reasonably be necessary for the payment of claims, expenses of administration, and for the purpose of distribution, such sales to be made by my personal representative without the necessity of petitioning or by the authority of the Court, or issuance of citation or notice of sale or order of confirmation or report of sale."
A:
Probate is not always necessary. For example, if the deceased person owned bank accounts or property with another person, the surviving co-owner often will then own that property automatically. If a person dies leaving very few assets, such as personal belongings or household goods, these items can be distributed among the rightful beneficiaries without the supervision of the court.
If, however you are relying on the will to distribute assets of value, the will must be "proved" through the probate process. The deceased person’s will can be proved by an affidavit made under oath by the witnesses to the will. If such an affidavit is unavailable, the personal presence of the witnesses may be required in court to testify that at the time the will was signed, the deceased person was of sound mind and knew what he or she was doing.
During the probate process, a personal representative is appointed. Until appointed by the court, the personal representative has no authority to act on behalf of the deceased person or the deceased person's estate. The heirs and people named in the will are notified of the probate proceeding. Assets are identified and an inventory is prepared and filed with the court. Debts are paid. At the conclusion of the probate process, the court directs distribution of estate assets to the beneficiaries named in the will.
Christian T. Wall agrees with this answer
A:
Please accept my condolences for your mom's passing. Unfortunately, that provision in your mom's Will doesn't avoid the probate process. The person (or company) named as Personal Representative has no authority until they are appointed by the probate Court.
Some assets may not require probate. For example, an IRA or life insurance policy will often have beneficiaries already named by the decedent. But some assets (often a house and/or bank accounts) will require probate to be filed if they are only owned by the decedent.
You should consult with a probate attorney to determine if probate is needed for your mom's estate.
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