Probate is an often misunderstood but frequently heard term in relation to the death of a loved one. Perhaps in completing your estate planning you have been advised to “avoid probate.” But what is probate and why is to be avoided?
Probate is the name of the legal process that takes place after someone dies for the purpose of the following:
- Proving that a deceased person’s Last Will & Testament is valid, if there is one.
- Determining and giving notice of the proceedings to the deceased person’s heirs, any beneficiaries named in the Will, and the deceased person’s creditors.
- Identifying, inventorying and valuing what the deceased person owned when they died.
- Determining who will receive the deceased person’s property (heirs, beneficiaries, creditors, etc.).
- Distributing the remaining assets as the Will directs (or to the heirs identified by state statutes if no Will exists).
The process itself involves filing documents in the local probate court to have the Will admitted and to request that a Personal Representative (sometimes called, Executor) be appointed. The Personal Representative is thereafter required to continue to provide information to the Court and the other interested parties, until the assets and expenses are fully accounted for, and then will ultimately need to obtain approval to distribute the assets to those who are entitled.
Clients often want to avoid this process because it can take a great deal of time and requires legal paperwork and potential court appearances. It is often misunderstood that having a Will is necessary to avoid probate. There are numerous ways to avoid probate, but preparing a Will is not one of them. Whether or not probate is needed will be driven by the value and type of assets owned by the deceased person. An estate planning attorney can discuss the ways to avoid probate and what might be most suitable in your situation.