Probate is the process through which items devised in a will are distributed to heirs and beneficiaries. When a person dies, his or her will must pass through probate except under certain circumstances. During the probate process, beneficiaries are given notice as to what they are entitled to receive. Probate usually includes an opportunity for beneficiaries who are unhappy with the distribution to challenge the will, sometimes resulting in a different distribution of assets. The probate process is also the time when appropriate taxes on the estate are assessed. The specifics of the probate process and the laws regarding enforcement and carrying out of the provisions in a will vary by state, and laws concerning probate and estate planning are important to consider when constructing a will. This is one of the reasons most people ask an estate planning attorney to carefully prepare a plan. Careful planning can prevent problems that may arise later. To learn more about probate, refer to the articles in this topic.
Probate is specialized area of the court that handles the remaining wealth and affairs of deceased individuals. An estate with a total wealth that exceeds a state’s probate limit is required to pass through probate. For instance, in California, this applies to any estate with wealth of more than $100,000. Smaller estates can still pass through probate should it be necessary to distribute assets properly. The process of smaller estates is typically much faster. Once it is determined that an estate must pass through probate, the will is submitted to the court. If there is no will, a relative fills out the proper paperwork and the estate passes through intestacy (without a will) proceedings.
Probate follows the same steps when processing estates and when distributing wealth to families. The first step is to assign and swear in an executor who is given the power to act on behalf of the estate. Next, public notice is sent out about the death. The purpose of this is to inform creditors, heirs, and the public about the death. After this, bills and final taxes are paid and receipts are presented to the court. Finally, whatever remains is distributed to the family. While the process seems simple, any challenges to a will or complication with heirs can result in an estate remaining in probate for as long as two years. In these more complicated cases, an estate planning attorney should be consulted.
The overall process of a will moving through probate is generally expensive, emotional, time consuming, and public. It is for these and many other reasons that some people prefer to use various estate planning options to avoid probate. Private contractual accounts such as pay-on-death and joint investment accounts will not go through probate. Additionally, joint ownership with “right of survivorship” terms pass automatically upon death, bypassing probate. Finally, the best and simplest way to avoid probate is with a living trust. The key here is to utilize the best options for a particular situation and ensure that total wealth is no more than the state’s probate amount. It is always wise to consult a probate attorney when attempting to avoid probate, as every state has certain nuances and requirements for these contracts to be valid.
Executors and administrators take on very similar roles, although they start out with a few variations. Executors are assigned by the deceased person to handle their will and its affairs. Administrators are appointed by the court when the estate does not have a will or if all the mentioned executors are unavailable. Both roles are sworn in as personal representatives of the estate and are expected to use the court’s authority to handle all of the estate’s affairs. The role of executor or administrator can be demanding and can result in personal liability should an estate’s affairs be mishandled. It is for this reason that all decisions made by an executor or administrator should be approved by the court.
The role of beneficiaries is a little more complex than graciously accepting a gift from a will, as it might seem. Rather, the first job of the beneficiary is to verify that the will is accurate and up-to-date. If it is, all the beneficiaries may sign a form so that the will is recognized as uncontested. Sending a will through probate uncontested saves a great deal of money and time and ensures that all beneficiaries receive the right inheritance. If the estate does not have enough cash to cover the costs of probate and the person’s debts, the beneficiaries must help pay the expenses. There are two ways that the beneficiaries can cover the expenses. First, they can simply pay the expenses out of pocket and receive the gift. This is usually the choice when the gift is something sentimental, such as the deceased person’s wedding ring. The other option is to opt for the gift to be sold (liquidated) and used to pay the debt.
No state requires you to use a lawyer to probate an estate, but probate can be complicated, and you can be personally liable if you do something wrong. One minor omission can prolong the process and cause problems with beneficiaries. It isn’t necessary to turn the whole process over to an attorney, a consultation can sometimes be enough to answer questions, get advice, or have an attorney review documents. If you are unsure about the probate procedure or about the estate, you can start by filling out a free evaluation form below to get in contact with an experienced estate planning attorney.