Through the probate process, the probate court oversees the orderly distribution of an estate. If the deceased had a will, the court will confirm the validity of the will and ultimately govern the distribution of assets in accordance with the wishes expressed in the will. If the deceased died without a will, or without any other estate planning measures in place, the court will ensure that the estate is distributed according to the provisions of state laws, known as “intestacy laws.”
If the decedent had a will, it will most likely name an executor—the person tasked with taking the will through the probate process. Even though the will specifies an executor, the appointment of the executor must be approved by the probate court. If the will does not name an executor, or if the named executor is deceased or otherwise unavailable, the court will appoint an executor.
Once the executor is appointed, the following steps occur:
Because of the many requirements involved, the probate process can take six months to one year or more. Most states, however, allow small estates to pass through probate in a simplified process that is less expensive and less time-consuming.
A probate matter may be contested or uncontested. Parties named in the will, and individuals who stand to inherit some part of the estate if the will is found invalid, are generally given an opportunity to object to a will. The most common objections involve allegations that:
As a general rule, the executor is responsible for completing the probate process. In most instances, the executor will hire an attorney to assist with his or her duties, take care of the necessary court filings and handle legal disputes.
An executor has the following duties:
Certain assets may not be subject to probate, depending on how they were legally held. For example, any property held jointly with others –real property, bank accounts, etc.—will generally not go through probate, but will immediately become the property of the joint owners. Furthermore, property held in trust does not go through the probate process. In addition, life insurance proceeds are generally not considered part of the probate estate.
The probate process can be an expensive and time consuming ordeal. As a general rule, the attorney handling the estate takes a percentage of the net worth of the estate…usually anywhere from seven to ten percent.
The most effective way to avoid probate is to create a trust and put all property into the trust. The probate process governs only the assets owned by the decedent. Because a trust is a separate legal entity, property put into the trust is no longer the property of the decedent. The decedent only had use of the property in accordance with the terms of the trust.
You can also avoid probate by jointly titling assets with another person. For example, if you open a bank account jointly with a family member or friend, the funds in that account will pass directly to the joint owner upon your death, and will never be subject to probate.
In our last article, we looked at 4 Reasons You Need a Will. In this article, we examine what might happen if you di... Read More
You may have certain items of high financial or emotional value you’d like specific relatives or friends to receiv... Read More
How It Works