What is probate?The probate process begins with the court-supervised authentication of your will. The executor of your estate will then locate and obtain a value of all of your remaining assets and pay any final debts and taxes from the assets in your estate. All remaining assets are then distributed to your beneficiaries.
The probate process begins on the date that you die. Your will is filed with the local probate court to determine the will's validity and legally declare the recipients of the property in question. The proceedings also validate the will's appointed executor of the estate, often a spouse, child or next of kin. Certain assets will go to probate regardless of whether or not you have a will. And while every state has established guidelines for the probate process, the common theme among them is that the court system becomes directly involved.
Testate vs. IntestateWhen you die and have a will, you are known as a testate decedent and your estate is probated according to your will. The judge will first review your will to make sure it is authentic. If there are no problems, your assets will be distributed according to your wishes.
If you were to die without a will, you will have died intestate. In this case, the court will appoint someone to handle the estate on your behalf. They will collect all the claims against your estate and use any assets to pay your creditors. The judge will abide by state laws to determine the best way to distribute your assets.
How long does the probate process take and what does it cost?Depending on how complicated your estate is, the probate process can take up to two years - or longer. Other situations can also cause delays, such as a complicated tax situation, the number of assets to be sold, debt disputes, or lawsuits against the estate.
The cost of probate will differ from state to state. They can be significant and typically include appraisal costs, personal representative fees, court costs, legal costs, and accounting fees.
Does all property have to be probated when a person dies?Not all of your property has to be probated. For example, if you own property jointly with another individual through joint tenancy with rights of survivorship, the property can pass to the survivor without having to go through probate. You can also set up payable-on-death accounts that allow the money in your accounts to pass to the beneficiaries immediately when you die.Life insurance death benefit proceeds will also almost always pass outside the estate and directly to the named beneficiary. The beneficiaries of IRAs and qualified retirement plans will also receive their money without it going through probate. But the most comprehensive way to bypass probate is with a revocable or irrevocable living trust. A trust is a separate legal entity that can buy, sell, own and manage property and distribute it according to the wishes of the grantor, who creates and owns the trust. The trust is managed by trustees (who are also often the grantors) for the benefit of the beneficiaries of the trust. All assets that are titled in the name of the trust are unconditionally exempted from the probate process and will pass directly to beneficiaries without going through probate. Trusts have many advantages over probate, such as their ability to provide financial incentives for heirs to accomplish certain goals or objectives, such as getting a college degree or getting married. They allow the grantor to disperse assets in a much more particular manner than a will. For example, the grantor of a trust can mandate that a beneficiary receive a third of the trust assets when they reach a certain age, another third five years later and the remainder five years after that. The transfer of assets with a trust is also private, whereas all probate proceedings are published on the county website. There is no privacy with probate! Another advantage that many types of trusts offer is protection from creditors and lawsuits. It is much harder (and often impossible) for creditors to attach money that is held inside an irrevocable living trust, regardless of the reason for the collection effort.
What other legal documents do I need?Wills are not the only documents that you will need in order to have a complete estate plan. A living will is designed to specify when you want to be taken off of life support in the event of a medical emergency. Medical powers of attorney are also necessary in order to allow others to make medical decisions on your behalf if you become incapacitated. Durable powers of attorney allow others to manage your worldly affairs and pay bills on your behalf when you are unable to. A well-crafted estate plan will usually contain all of these documents along with your will. For more information on estate planning, visit a qualified estate planning attorney who can help you to create an estate plan that fits your needs and objective.