Probate court is the legal process that oversees wills, estate administration, and conservatorships. When a person passes away, before their assets can be transferred to their intended heirs, their estate may be subject to the probate process. During this process, the probate court will authenticate the decedent’s will, oversee the assessment of their assets, make sure all taxes and debts are paid, and distribute the remaining assets to their heirs, as outlined in their will. If there is no will, the court will distribute assets following that state’s intestacy laws.
Probate can be a lengthy and complicated process, not to mention a very public one. Those with complicated estates will often try to avoid this process by deploying certain estate planning tools. However, probate is not always avoidable.
When is Probate Necessary, and When Can it Be Avoided?
The laws governing which assets need to go through probate—and which can avoid probate court—are complex. As a general rule, though, wills are always subject to the probate process. If you die intestate, which is to say without a will, then the probate process becomes even more complicated, as the court is charged with making decisions about how to distribute your assets.
There are, however, certain assets that do not need to go through the probate process. If the deceased had set up a living trust, then the trust is not subject to probate. Rather, the assets held within the trust can pass directly to their intended beneficiaries. In addition, any asset that allows you to name a beneficiary—such as life insurance policies or retirement accounts—can go directly to the named beneficiary, without being subject to probate court. Similarly, jointly-titled property with survivor’s rights does not need to go through probate.
Of course, trusts are not always a fail proof way to avoid probate. Working with a qualified estate planning attorney is the best way to ensure your estate stays out of probate after you pass away.
What is Probate and How Does the Process Work?
The process begins when an individual, usually a family member, files a petition for probate. Then the probate court will appoint an executor of the deceased person’s estate. The executor, generally in conjunction with a probate lawyer, will be responsible for making sure the assets reach their intended beneficiaries.
If the person dies with a will, the first step is for the court to ensure that the will is valid. After that, the executor will find and inform any beneficiaries and creditors of the person’s passing, and arrange to settle the person’s debts. Then, all the person’s assets must be located, and their values assessed. Finally, all remaining assets will be distributed to the designated beneficiaries.
In cases where a will is present and not contested by creditors or predators, the process is fairly straightforward. It can get much more complicated if the person dies without a will, or if the will is contested. In these cases, the probate court plays a larger role in determining the allocation of assets amongst the deceased’s next of kin, or adjudicating disputes among potential heirs.
Hiring a Probate Lawyer
Probate court can be a complicated process, but it is an important tool for making sure a person’s estate is properly distributed. If you’re named an executor of an estate, or are otherwise involved in the probate process for a loved one who has passed away, hiring an experienced probate lawyer can make the proceedings considerably easier.
At Miller Estate and Elder Law, we have years of experience guiding clients through the probate process. Contact us today using the brief form below to find out more about our probate administration services.