Guide to Understanding the Probate Process
Understanding probate is an important aspect of estate planning. Most estates must go through the probate process, which can lead to numerous complications, delays, and conflicts. Drafting a thorough will can help simplify probate, but it cannot ensure a smooth process. It is important to remember that when people have a will, they think that it’s going to avoid the probate process, and that’s not accurate.
What Is Probate?
Probate is the official legal process for administering the execution of a will, resolving an estate, and transferring the decedent’s assets to their beneficiaries. Even with a detailed will, an estate can contain a complex web of different accounts, properties, valuables, and other assets. Probate’s role is to untangle that web and ensure the right assets are transferred to the right people.
Probate is mandatory in the event the decedent has a will or no estate plan at all. Having an airtight will is not enough to avoid the process, as probate is still necessary to formally execute it.
How Does the Probate Process Work?
Avoiding probate is ideal in most cases, as it can be a costly, time-consuming, public process that can place significant stress on your family. If you must go through the probate process, there is typically a series of important steps to follow, though some states have different rules and nuances for probate law.
The general structure of the probate process includes the following steps:
- Locate the will. The family must present the decedent’s most recent will in court, if it exists. This can be easy or difficult depending on where and how the will is stored and whether the family already knows its location.
- Hire a probate attorney. The family’s legal representative in probate must be licensed to practice in the state where the decedent resided before their death, as probate proceedings must be held there.
- File a petition for probate. The attorney can officially initiate proceedings by filing a petition and requesting to appoint an executor or personal representative for the estate, typically someone designated for that role within the will.
- Schedule and publicize a hearing. The probate court must notify the public of its first hearing for several weeks in a row. The estate must also inform any beneficiaries named in the will.
- Begin proceedings. If no one objects at the hearing, the court will appoint the estate’s personal representative, who will begin gathering assets, contacting financial institutions, and scheduling appraisals if necessary.
- Notify creditors. The representative must publish a notice in the newspaper informing any creditors to the estate, who have the right to settle their debts before beneficiaries receive their inheritance.
- Approve transfers: After the personal representative has created a full inventory of the estate’s assets and their values, the court will hold a hearing on whether to officially approve the transfer of assets to the designated beneficiaries. That hearing must also be publicized.
- Close the estate: Once the transfer has been approved, the representative can ask the court to officially settle the estate and end probate.
“Ask a family member if they’ve had to deal with probate and tell me what they say. It’s never good.”
Why Should Probate Be Avoided?
Simply put, much of what happens in probate can be completely outside of your control. No matter how thoroughly you’ve planned your will, something can throw a wrench in proceedings and undermine your wishes for your assets for long periods of time.
There are many reasons to avoid probate. Some key reasons to avoid probate include:
- Probate can promote familial conflict: The opportunity to contest a will can bring out the worst in people, pitting family members against each other and potentially dragging out proceedings for years.
- Probate can be lengthy: Even if everything goes right, your loved ones still might wait six months to a year before receiving their inheritance.
- Probate can violate your family’s privacy: Probate documents are public, which means anyone can view the names, addresses, and birthdays of your beneficiaries — potentially exposing them to harassment from scammers at a time when they’re most vulnerable.
- Probate is expensive: The longer probate takes, the more your estate will pay in fees, leaving your family with less.
“I help people set up their plan in a way that when their families are grieving them after they’ve passed on, they have the ability to easily administer their trust without having to go through probate.”
Probate Q&A
Should Probate Be Avoided? Why or Why Not?
Yes, rarely does it make sense for someone to want a probate. It’s very public, it’s very expensive, and it can be very stressful. It gives the opportunity for people to come forward and contest the probate that’s going on.
How Long Does Probate Take?
The length of a probate can be extremely long. At the shortest, it could be six months. At the longest, it could take years. I’ve seen probates last 10 years before.
How Much Does Probate Cost?
Many states have a fee of 3% of the value of the estate, so if you’re dealing with a million-dollar estate, the probate fees can easily be $30,000 from that. Additionally, there are fees for the personal representative or the executor, so the cost can be very significant.
How Does Probate Impact Family Dynamics?
They get notified of what a will says or they get notified that there’s an intestate probate where someone didn’t have a will, and it gives them an opportunity to come forward, to file a contest, to say that mom or dad were incapacitated or that’s not what mom or dad wanted.
Why Is Probate Stressful?
The personal representative in the family has to attend multiple hearings, and that occurs in the state where the client passed away. You have to come to court and you have to sit in a courtroom all day long. And remember, these are families that are in mourning anyway. It can just be a really stressful event that’s completely avoidable with proper planning.
How to Avoid Probate
Fortunately, the probate process is completely avoidable with proper planning. A trust-based estate plan can help you pass on your estate directly to beneficiaries in accordance with your wishes. Placing assets within trusts can prevent your family from needing to enter probate to receive them, circumventing all the chaos and headaches that come with it.
However, designing a trust-based plan requires guidance from a specialized estate planning attorney. The trusted team at Evans & Davis understands the intricacies of trust-based estate planning and can help you fully avoid probate.
What to Do If You Are Required to Go Through Probate
There are many steps to take after the death of a loved one, our experienced estate planning attorneys can help you navigate the process with minimal stress, whether the estate is simple or highly complex.
Services we provide include:
- Assisting with paperwork and filing the documents needed to start the probate process
- Collecting information necessary to inventory the decedent’s estate and properly value all assets
- Attending all court hearings and providing experienced legal advice
- Preparing and filing beneficiary designation forms for assets that don’t need to go through probate
- Evaluating the validity of the decedent’s debts, resolving outstanding liabilities while minimizing the cost to the estate
We’re committed to helping our clients champion their family legacies. When you work with our firm, we aim to form a long-term relationship with you, providing tailored estate and business planning services to help you handle whatever life throws your way. Contact us today to schedule a free consultation with our knowledgeable estate planning team.