One factor that sets the stage for probate is the failure to plan. Some people feel invincible as if they will never pass away, so they never do the necessary planning. Many feel planning is cost-prohibitive. As a result, the heirs are left trying to figure out where the assets are, and who is to receive them. The failure to put a probate avoidance plan in place ahead of time sets the stage for probate. For example, if someone has an insolvent estate, we must pull the house into probate to deal with creditors. Alternatively, someone may have a number of financial accounts with no beneficiaries. The deceased may have failed to name anyone on a life insurance policy, retirement account or savings account. The aggregation of these accounts might exceed $50,000. If this is the case, then must probate the estate before the family can access the funds or use the funds to pay any bills.
Is Probate Necessary?
Probate is not always necessary; it can be avoided with proper planning. I am a big advocate of trust planning which involves putting the assets in a trust and allows the individual to manage those assets during their lifetime. When they pass away, the administration of their estate will be a private matter and completely avoid probate and the court process.
Does All of a Deceased Person’s Property Need to Go Through the Probate Process?
Not all of a deceased person’s property needs to go through the probate process. For example, someone may have a living trust, but forgot to put their checking and savings accounts in the trust, or forgot to add a beneficiary to a life insurance policy. In these cases, we probate only probate assets that don’t have a beneficiary, surviving joint owner, or were not put in the living trust.
What Are My Options for Avoiding Probate?
Probate can be avoided by putting property in a revocable living trust. If the property is to pass via a will, that is going to guarantee it will go through the probate process. Having assets properly funded into the living trust and making sure that there are primary and contingent beneficiaries will maintain privacy after someone’s death and avoid the probate process.
Who Are the Main Players in the Probate Process?
The main player in the probate process is the decedent, or the individual who passed away and owned the assets when they died. The personal representative (who is also known as the executor or the administrator) is the person who is appointed by the court to go through the probate process. The attorney who is representing the executor will do a lot of the heavy lifting, such as preparing the documents, dealing with the beneficiaries, negotiating with creditors and appearing in court.
The court itself will also be involved in the probate process. For matters that are not complicated, a probate master rather than a probate judge may be appointed to the case. The probate master will review the file, make sure that the will is properly executed and that all of the required documents have been filed with the court. If real property is being sold, there will be a realtor, title company. The final player is the beneficiaries entitled to the assets at the conclusion of the probate process.
What Actually Happens During the Probate Process?
During the probate process, subject to the court’s scrutiny, the executor must make a thorough inventory of all the estate assets, locate creditors, continuously find and pay bills, file any and all required tax returns, and act as a fiduciary to manage the estate’s assets. When the executor believes all of their duties have been completed to the court’s satisfaction, she will file a final petition with the court. If that petition is granted, the executor may begin distributing assets to the heirs. A final tax return must then be filed by the executor.
What is the Standard Timeline for a Probate Case?
The standard timeline for a probate case can be six months to a year, or even sometimes longer. I recently completed a probate that had been open for four years. There were complicated issues regarding real property and various liens on the property that took time to sort out.
For more information on Factors Causing Probate To Occur, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (615) 628-7775 today.
