This is a question we often hear after a title company or realtor warns a client that they can’t close until they go through probate. The basic answer is that a dead person can’t sign a deed. That’s pretty obvious but I will give you several examples where people often think they will not need probate.
The scenario that angers people the most is when their spouse dies. Everyone assumes the surviving spouse can just sell the house without probate. If husband and wife own the home as joint tenants, they can avoid probate by just recording and Affidavit of Survivorship with a certified copy of the death certificate. Sometimes, however, the deceased spouse owned the home before they married and they never thought to do a deed to add the spouse to the title. Or, often when people draft their own deeds, the deed to husband and wife doesn’t reference survivorship. In that case, even though both spouses are on the title, we have to probate to confirm that the deceased spouse’s will did in fact show that this land was to go to their surviving spouse.
A more basic example is simply where a parent dies and their will very clearly says their son, for example, is executor and sole beneficiary. The son often thinks he can just sell the land immediately as dad paid some lawyer to get his wishes formalized with a will. This will, however, has no legal power until a court holds a hearing and confirms that this will is in fact dad’s last will, dad was competent when he signed the will and the signature on the will is in fact dad’s signature and not a forgery. In short that’s what a probate hearing is all about.
There are many ways to avoid probate (trusts, transfer on death deeds, joint tenancy, life estate) but all of these methods require that you sign and record a deed to make sure the title is correct. Drafting a will or even a trust is not enough if the deed shows a single person as owner and that person dies. After death, it’s too late to fix the problem and we now need probate to transfer title.
The practice pointer here is never assume you will avoid probate as you are married, have a trust or whatever; you need to check the last deed of record and make sure the title is set up to avoid probate.
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