When it comes to Estate Planning, there may be many unfamiliar terms that keep you from properly protecting your estate, and preparing for your future. With that in mind, Probate may be one of those unfamiliar terms, which is indeed important to understand.
Probate technically means “the official proving on a Will.” For practical purposes, Probate is the legal process of establishing whether a valid Will exists for the estate, inventorying the deceased’s assets and property, having the assets and property appraised, paying any applicable debts and taxes, and distributing any remaining assets and property to the heirs. The process can be in accordance to a person’s Will or by established law in the absence of a valid Will. In short, Probate is the court process where assets of a deceased person are distributed.
Some people fear that Probate can be a long or costly process. And they are correct in their concerns. Probate is a lengthy, costly and, in most situations, avoidable.
Do all estates go through Probate?
Whether an estate has to go through the Probate process is largely determined by the type of property owned, how it is owned, and local state law. For instance, California has adopted “simplified procedures” where the estate is not put through Probate for estates valued under $20,000 to $100,000 depending on the circumstances and type of property owned. Additionally, unless property is specifically arranged to avoid Probate, Probate is the only way for heirs to get full legal ownership.
Should I try and avoid Probate?
Probably not without expert Estate Planning advise. One of the most popular ways to avoid Probate is with the use of a revocable living trust. Assets are placed into a living trust but are still accessible to the trust creator. Additionally, the trust creator can revoke or amend the living trust throughout their lifetime. Proper Estate Planning will help you best achieve your goals. By talking with a trained Estate Planning professional you can discuss your goals and make choices that will effectively and efficiently plan for your estate’s Probate.
What happens during Probate?
Usually, Probate involves paperwork being filed in the court and attorneys making court appearances. Any applicable courts fees and attorney’s costs are paid, if possible, by the estate. The first step is a Probate case is filed in the proper court of jurisdiction. The proper court is determined by state law. In California, Probate cases are filed with the Probate Department of the Superior Court in the decedent’s county of residence at the time of their death. The process is dictated by state law but generally a case is opened, an executor or administrator is assigned as the personal representative of the estate, any objections, if any, to the Will are heard, and the court makes any decisions necessary to get the Probate closed.
How long does Probate take?
This depends on many factors including the complexities of the estate, the state the estate in located in, and whether the will is contested. A local attorney specializing in Probate will be in the best position to advise you on what type of Probate process would be expected for your estate.
Do I have to use a lawyer for the Probate process?
No, but you probably should. While there is no legal requirement to hire a lawyer if you are named the executer or administrator of an estate, it would still be a prudent decision. A lawyer will help ensure you file everything timely and help you avoid making any mistakes. Hiring an attorney upfront to navigate the legal system for you, is much cheaper than hiring a lawyer to clean up a mess after it has already been made.
We hope this article has provided some indication of what the Probate process entails. If you have any additional questions, please feel free to contact us.
Are there are any Estate Planning terms or lingo that you are unsure about their meaning? If so, post in the comments below and you just might inspire our next blog post.