What is probate?
Probate is a legal process carried out by the court of law to determine the validity and authenticity of the last will and testament of a deceased person. The deceased person is referred to as the testator whose assets are to be distributed and shared among those named in the will.
The person appointed by the will to represent the will maker – testator – upon his death is known as the executor, the executor is recognized legally as the personal representative of the deceased and his – executor’s – appointment only becomes functional when the testator dies.
In a situation whereby the deceased died intestate, a legal personal representative is appointed by the court and this representative is known as the administrator. The administrator could be a close relative for example the parent of the deceased
The probate process
The process of probate involves several steps, briefly, they include
Filing a petition to commence Probate: This is the first thing that the executor does. He files a request to the county the deceased lived at the time of their death. Along the petition, he is required to file a death certificate and a Will if there is one.
Sending notice: After opening the probate, the next thing is to send a notice to notify all the beneficiaries and heirs that the estate is on probate. This is also dependent on the state’s law.
Taking to account all assets: The executor is required to put together inventory of all assets that are subject to probate and present them to the court.
Settling bills and creditors: Here, the executor id required to settle all the creditors of the testator. He uses from the estate to do this.
Distribution of the remaining assets: After settling all creditors, paying all outstanding bills and taxes, the remaining assets will now be distributed to the rightful heirs. The executor makes sure that the assets are distributed among the heirs according to how the testator specified
Closing the estate: After distribution of everything, the executor presents and submit receipts and records of everything to the court; he will then ask that the court close the estate and that he be released from the executor’s role
Why avoid probate?
Generally, there are different reasons why different person avoid the probate process. For some persons, their major concern is privacy, for some others, it is the time that it takes to complete the probate process that scares them.
Time factor: To make your assets readily available for your heirs and beneficiaries after you die, you have to plan your estate in a way to avoid probate. This is because the probate process can take a pretty long time to be completed and during this time, the heirs and beneficiaries of the deceased cannot have access to the estate.
Privacy: This is another serious reason most people tend to avoid probate. Once a probate case is opened, it becomes a public document which can be accessed by any and everyone who wishes to.
Ways around probate
There are several ways to go round probate
Transfer-on-Death Registration for Securities: if you have stocks and bonds, in New York you are allowed to register a TOD. In this case, at your death the beneficiary will be the owner of your brokerage account.
Joint ownership: A property jointly owned with the right of survivorship means if one of the owners dies the property is automatically transferred to the surviving partner.
Living trust: it is possible to make a living trust to avoid probate for any property at all; it could be real estate, bank accounts, vehicles, etc.
Payable-on-Death: This is available only for Bank Accounts. You can decide to avoid probate for the money in your account by adding a “payable-on-death” (POD) designation to bank accounts.
Role of a probate lawyer
When writing your will or planning your estate by yourself, you might miss out some vital steps which would help you avoid probate. This is where a probate lawyer comes in. a probate lawyer is one who serves in a probate court. They represent heirs, beneficiaries, creditors, etc.
A probate lawyer will guard you through the process and steps involve in writing your will in order to help you avoid probate. Our probate lawyers are always available for consult and hire. Reach out to us today.
Frequently asked questions
Question: What type of trust can be set up to avoid probate?
Answer: An irrevocable trust can be set up to avoid the probate process
Question: What if I don’t mind my assets going through probate
Answer: If you are ok with all the downsides of probate then you are good to go
Question: If there is no probate, how will the assets be distributed?
Answer: This depends on the method which was used to avoid probate. If it was trust, the trustee will ensure the assets are distributed according to the instructions of the trustor
