Understanding the Probate Process
When deciding to create an estate plan, and specifically, set up a Last Will and Testament to lay out your final instructions and distribute your estate, you want to make sure your loved ones are provided for. You want to protect them from dealing with important financial and other after-death decisions.
What happens with your estate after you die? Is the transfer of assets to your beneficiaries immediate? Even if you have a will, your estate must still go through the process of probate. What is probate and is there a way to avoid this legal procedure?
Probate is defined as the legal process during which a person’s Last Will and Testament is reviewed and determined to be valid. This procedure is handled by the probate court and begins after the testator (creator of the will) dies. The probate court works with the appointed executor of the will to settle debts and disperse the estate as instructed in the will. Depending on the size of the estate, the process can take anywhere from a few months to over a year.
The executor of the will is the appointed representative over the testator’s estate and is responsible for working with the court, settling any outstanding debts, and distributing the estate to the intended beneficiaries.
The probate process generally occurs in the following steps:
- The will must be presented to the court within 30 days of the testator’s death. This is generally done by the custodian of the will (i.e. an attorney or the executor).
- The court officially appoints the executor and this person begins collecting all necessary information regarding the testator’s estate. This includes, insurance policies, property deeds and titles, and financial account statements.
- The court must prove the presented will is legally valid, which may include testimony from the document’s two witnesses. One way to speed up this part of the process is to include a Self-Proving Affidavit in the will to attest to the validity of all parties’ signatures.
The executor then begins working with the court in creating an inventory of the testator’s estate. They are required to file copies of financial documents, deeds, or titles collected. The executor must also determine the validity of any debts against the estate and make arrangements to pay the balances.
Probate “ends” when the estate has been inventoried, the debts have been cleared, and the remaining assets and property are distributed to the beneficiaries.
Most of the testator’s property and assets will go through probate, although there are a few exceptions:
- Any joint-owned property will automatically transfer to the surviving owner and will not be involved in the probate process.
- Any assets or property placed in a living trust are exempt from probate.
- Any financial accounts that specifically name a beneficiary may also be exempt from probate.
There are a number of ways you can avoid probate, or at least limit the assets that must go through the process:
- Add a joint owner to your property (i.e. spouse, child, family member). Ownership interest will automatically transfer to the surviving owner.
- Give away property or items in your estate prior to death.
- Add direct beneficiaries to financial accounts or insurance policies. The assets will automatically transfer.
- Transfer real property to beneficiaries with a Transfer on Death Deed. This only goes into effect after the owner dies.
- Create a living trust and add assets and property for chosen beneficiaries.
Creating a trust allows you to have control over your estate before death and ensures a quicker distribution of assets without the hassle of probate. You can use both the living trust and the Last Will and Testament together so everything is taken care of.
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