Probate is the judicial process of valuing an estate and distributing it to the beneficiaries. An estate can be brought into probate court if a will is being challenged, or if there is no will at all.
Typically, when someone passes away, they have an executor to their will. This person will make sure any back taxes, court, or lawyer fees are paid. Once this is done, they divide the assets up and disperse them according to the wishes stated in the will.
A will can be challenged if one of four things are true. The first being if the will was not signed with the right legal protocols. The second being if the person did not have the mental capacity to make the will. Other reasons include if the person was influenced to make the will a certain way, or if the will was obtained fraudulently.
When someone does not have a will, the probate courts have to determine where that money and property go. If there is no executor to pay the decedent’s final bills, probate will do that too. Each jurisdiction has a different set of rules for how estates are divided when there is no will. Typically, spouses get priority.
Sometimes, even if there is a will and it is not contested, probate is still necessary. When the decedent has sole ownership of the assets, probate facilitates the legal transfer of ownership of the assets to the beneficiary or beneficiaries.
Most probate cases do not get settled for over a year. There are ways to avoid the probate process. A living trust is like a will. The only difference is that you can appoint a successor who will be able to distribute the assets to beneficiaries as soon as you pass away. This process takes weeks instead of months or years.
In certain circumstances, a living trust is not needed. For example, when spouses own property together in a state that has joint tenancy. This means that they have the right of survivorship and the property will automatically be theirs upon the death of their partner. Community property owners and tenants by entirety are other arrangements that have rights of survivorship and do not require a living trust.
A beneficiary deed, also known as a transfer on death deed, is similar to a joint tenancy. If both parents die, the property automatically gets transferred to the children without the need for probate. However, this is not allowed in every state.
While it is possible to avoid probate, it is necessary in most cases. It is important to understand the process and consult with a probate attorney to figure out how to make the affair easier for your family.