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Is Probate The Same Thing As A Will?

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Is probate same as will

No.  A will is a written instrument to outline property distribution upon death. Probate is the procedure whereby wealth, or title to each specific asset held in the name of the decedent, is transferred into the names of the beneficiaries named in the Will or to the heirs in the case where there is no Will.  First, a Will must qualify for admission to probate.  Generally, a testator must be of a certain age, usually 18; must not execute a Will as a result of undue influence or fraud; and must be mentally competent to make a Will.  If the decedent had a valid Will, it is admitted to probate upon application by a proposed executor or administrator.  If the decedent had no Will, the estate is still subject to estate administration; however, title is transferred to the heirs as set forth by state law.  Certain assets, such as property owned as joint tenants with right of survivorship, insurance proceeds and retirement accounts with named beneficiaries, and revocable trusts are called non-probate assets and do not go through estate administration.

 

Probate is a court supervised process and state law sets forth the exact procedure to be followed.  The executor generally files an inventory with the court listing the fair market value of assets and debts.  Notice to creditors is part of every probate, in order to notify them of the death so they may file a claim for unpaid amounts owed to them.  Once all claims, debts and taxes have been paid, the estate can be closed after the executor has filed an accounting and final report with the court.  Distribution to beneficiaries can now be made, although in many cases a partial distribution can be made before the estate is closed.  Many states provide simplified procedures for small estates or estates where the assets pass entirely to family members and all beneficiaries consent to the simplified administration.

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What Does It Mean If A Property Is In Foreclosure?

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Foreclosure is the legal or equitable enforcement of a mortgage, deed of trust, or other lien through legal proceedings or pursuant to a power of sale clause in a mortgage.  Discussed here is a foreclosure of a mortgage or deed of trust.  Foreclosure typically occurs when the mortgagor, or debtor, has defaulted or failed to perform an obligation imposed by the instrument such as a mortgage.  The ability to foreclose a mortgage often is limited by state law.  In Iowa, for example, a mortgagee may foreclose a mortgage by judicial proceedings or non-judicial voluntary foreclosure.  Foreclosure terminates the rights of the debtor/mortgagor in the real estate except for such statutory rights as redemption, mandatory mediation or other rights allowed by law.  Once foreclosure has been accomplished and all the rights of the debtor/mortgagor in the real estate are extinguished, the mortgagee holds title free and clear of any claims by the mortgagor.

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Must Any Transfer Of Property Be In Writing?

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Yes, an agreement, contract, conveyance, sale, or other transfer of real estate, or an interest in it, usually must be set forth in writing and signed.  The writing requirement is found in a body of law, sometimes referred to as the “statute of frauds.”  This law makes oral or verbal transfers of real estate unenforceable.  The written document setting forth the terms of the sale or transfer is referred to as “an instrument.”  Simply put, an instrument is a written document.  To be enforceable, a sale or transfer of real estate, including an encumbrance such as a mortgage, must be evidenced by a properly executed instrument.  Some examples of instruments affecting real estate include: contracts, deeds, leases, mortgages or deeds of trust. 

 

A possible exception to the writing requirement occurs where one or more of the parties to the agreement have partly performed their obligations under the contract and strict enforcement of the writing requirement would be inequitable or unfair.  Another exception occurs where one or both sides to an oral agreement admit the terms of the contract and agree to put it in writing or agree that it will be enforced.

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