What Happens During Probate?

It can be difficult to think about what to do next when a beloved one passes away. That makes it more important to prepare in advance and have a will ready. Unfortunately, the AARP reported in 2017 that 6 in 10 Americans do not have a will, even though death is something which can come at any time. This is especially so given the current coronavirus pandemic.

Probate determines what happens to an estate after a person passes away and ensures that the deceased's will is carried out. But without proper preparation, probate can become a long, drawn-out process which can see an estate tied up for years in court.

The Probate Process

Probate begins upon death and is usually initiated by the estate's attorney or executor. If there is a will, a probate judge will examine the will first to determine whether it is legitimate. A will typically includes an affidavit by those who witnessed the will's signing, though others may contest it. One may argue that a more recent will exists, or that the deceased was not of sound mind upon writing the will.

After the will is revealed, then the executor may be required to post a personal bond to the court as insurance against an accidental or malicious action to comply with the terms of the will. This requirement can sometimes be waived.

At that point, the real probate work begins. The executor has four goals:

1.      The deceased's assets must be collected, and the value must be ascertained.

2.      Beneficiaries and creditors must be informed about the deceased's passing. This is the reasoning behind obituaries, as they serve to inform unknown creditors.

3.      Debts to creditors must be paid off using the funds from the estate of the deceased. A key point in this step is that you cannot be forced to pay for this debt with your own money, but only with whatever benefits you may have received from the estate. However, the FTC notes that there are certain conditions where you may end up responsible for the debt, most importantly if you co-signed any loans or fail to comply with probate laws.

4.      Finally, distribute any remaining assets to the beneficiaries as provided for by the will.

An Estate without a Will

If someone dies without a will, the probate process is not that different. The key difference is that a probate court will distribute the deceased's assets according to the letter of the law instead of to whatever the deceased desired. As one example, the deceased's good friend will likely end up getting nothing and the family from which the deceased may be estranged will get the estate.

Furthermore, the process of settling a will without probate becomes much more difficult and will take a much longer time, with more costs as a result of increased attorney fees. Any property owned will be unable to be used, while the executor will still be liable for bills and utilities.

How to Lessen Probate's Impact

Given these factors, it is best to avoid - or at least lessen - the amount of time spent in probate. Probate does not kick in if the estimated worth of your estate is below a certain amount, with the exact amount varying from state to state. Consider giving away part of your estate if you are alive, or owning property jointly to make it clear where your estate will go after your death. And of course, draw up a will.

On a final note, probate laws do vary from state to state, and so it is important to do your own homework to figure out the exact details for where you live. If you are named an executor or are going to draw up a will, talk with trusted lawyers like Templeton Horton Weibel & Broughton PLLC

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