Why does probate exist with respect to a decedent's estate?

When a person dies owning assets in his or her name alone, confusion exists as to who is entitled to receive those assets following the death. You can imagine the confusion of a bank holding an account with $150,000 in it, titled in the decedent's name alone-who now has rights in the account? For obvious reasons, banks and other holders of assets do not want to be in the position of deciding who is to receive a decedent's property. For that reason, resort is had to the local courts for a determination as to who is legally entitled to receive the decedent's solely owned property. Once again, remember, this inquiry does not apply to assets that were not standing in the decedent's name alone. For instance, if A and B own a home in joint tenancy with right of survivorship and A and C own a certificate of deposit in joint tenancy with right of survivorship, then upon A's death, B automatically owns the entire home by virtue of the joint tenancy and C automatically owns the certificate of deposit for the same reason. Similarly, if A has a life insurance policy and names D as the sole beneficiary, and A has an IRA account and names D as the sole beneficiary, then upon A's death, D is entitled to collect the proceeds of the life insurance policy as the surviving beneficiary and to collect the proceeds of the IRA for the same reason.

For the above reasons, the first inquiry to be made by any competent probate attorney is - What assets did the decedent own an interest in, and how were they titled? Were their surviving co-owners on assets held in joint tenancy? Were their named beneficiaries on assets permitting a beneficiary designation? These are the key threshold questions to be asked. The fact that a decedent owned assets with a great value does not necessarily mean that any probate proceedings are needed. For instance, a decedent may own a $1,000,000 account in joint tenancy with his nephew, who survived the decedent. In such case, no probate proceedings need be instituted; absent proof that the decedent did not intend for the account to pass to the nephew, the entire account can be paid to the nephew without any probate proceedings being instituted.