You may have heard the term thrown around before and just chalked it up to being legal jargon that is too complicated to understand for those that never studied law—but honestly, what is probate? Simply put, probate is the process of reviewing a will after someone passes to comply with the written last wishes of a decedent. If the deceased does not have a will, which is called dying intestate, probate is also the process of divvying up the estate to beneficiaries as determined by the statutes of that state.
Probate can be time consuming and costly. Avoiding probate, or minimizing its impact, is the goal of most estate planning attorneys. In addition to the cost of an executor to administer and allocate the assets, there are additional attorney fees, court costs and lengthy delays in getting the assets to the heirs. It is not uncommon for even modest estates to take a year or longer combined with multiple hearings, which involve even more professional fees, to finally transfer assets.
If there is a will, the executor (as named by the decedent instead of a potential unknown person acting as an administrator) starts the process off by filing it and related documents with the probate court for those items that require judicial distribution. A proper will also will consider important factors like who will take custody of minor children, what family members do or don’t receive any portion of the assets, or even that favorite heirloom. Such items like contributions to a named charity can be honored or if there are special wishes on how a family pet is to be cared for can be included in a will and estate plan.
Prior to anything being done, the probate court judge empowers the executor named in the will to act on behalf of the deceased in honoring those wishes, to report all efforts on a regular basis to the court, and finally to complete the distribution of assets. If there is no will, the probate court will appoint someone as an administrator that functions similarly to an executor. The administrator will also determine legal heirs to the estate so that the probate court can distribute assets based on the state’s specific distribution process.
Generally you have the same expenses plus an important factor; instead of the dearly departed wishes being honored by the will, no specific bequests can be made and assets are conveyed in accordance with state statute. Custody of children may also be different than what would have been intended. Some people not even close to the deceased may share in the assets, leaving others empty handed, because that is the way the statutes may affect the distribution priority. An oral promise to you regarding an item you personally treasure may not be kept. Without a proper will, the intent and wishes of a person can’t necessarily be honored!
Probate can be a long and costly process, but it can be avoided or minimized. With a concrete plan, which may be much more financially reasonable than one would expect, probate may not be a worry. The solution to everything stated here is to have a qualified estate plan drafted. The attorneys at Evans & Mullinix have the experience and know-how to prepare a comprehensive estate plan.
