What is probate?
Probate is a legal process which the court uses to ascertain the validity of the last will and testament of a deceased person. The deceased person known as the testator, names another person – the executor – in his will.
The executor: The executor is a person who is named in a will by the testator. The executor could be a spouse, sibling, parent, relative, friend, attorney, etc. The executor is responsible for
- Filing a request to the probate court to commence the probate process
- Enlisting probate assets of the deceased
- Paying bills and settling of creditors
- Settling of taxes
- Collecting debts owed to the estate
- Locating and informing the heirs and beneficiaries of the estate about the commencement of the probate process
- Ensuring proper distribution of assets among the heirs of the testator
- Filing a request to the probate court to end the process
The will: A will is a legal document which is written by a person to cater for his or her affairs after they pass. The will makes provision for several things among which are
- Naming of the executor; it is in the will that the executor is named
- It names a secondary executor; if something should happen to the executor that makes him unable to carry out his duties, the secondary executor will act as the executor
- Naming beneficiaries; the will contains in-depth instructions on how the estate should be distributed among the heirs and beneficiaries of the estate. It states who gets what.
- Naming of creditors; the will also states the creditors of the estate which should be settled and the amount they are owed. This is very useful as it will help prevent creditors from defrauding the estate.
- It states the debts that are owed to the estate
There are different types of will serving in different situations. For a will to be considered valid and recognized in court, it has to be in written form, it has to be signed by the testator in the presence of more than one witness. The most recognized type of will is the testamentary will
Probate assets
There are certain assets which cannot go through the probate process; such assets are known as non-probate asset. On the other hand, those assets which are eligible to go through the process of probate are known as probate assets. Examples of such assets include personal belongings, house hold properties, assets owned alone, etc.
Why avoid probate?
Avoiding the probate process depends on how individuals attach importance to certain factors like time, privacy, etc.
- Time: The probate process could be time consuming. It could take weeks, months and even years to complete. So individuals who wouldn’t want their loved ones to stay that long before getting their inheritance will take proper measures to avoid probate.
- Stress avoidance: People put plans in place which will help to avoid the process of probate when they die just to reduce the stress of their loved ones
- Privacy: Probate makes your estate public and accessible by everyone. Most individuals prefer their estate information to remain private. So they try to avoid this process.
- Finance: Probate could also be a costly process because your attorney will not represent you for free.
How to avoid probate
- Transfer-on-Death: This method allows you to make a designation for your assets so that when you die, the assets go directly to the designated beneficiary.
- Payable-on-Death: This is applicable to bank accounts. You can add a “payable-on-death” (POD) designation to bank accounts.
- Joint ownership: This is common among spouse, when one dies, his/her properties automatically goes to the living partner.
The probate lawyer
Probate is a legal process, so you will need a lawyer to represent your interest in the probate court. For consult and hire contact our probate lawyers today.
FAQ
Question: Can a spouse automatically become the executor?
Answer: It is not legally possible; either the spouse is named in the will or is appointed by the court.
Question: Can a will be updated?
Answer: Yes a will can be updated when there at the occurrence of certain event which will modify the Will
Question: What happens when there is no will?
Answer: Based on the state’s law, the court will determine how the estate of the deceased is shared among his heir.
