Probate

You should understand the implications of probate when you are making estate planning decisions. This is the legal process of estate administration, and it takes place under the supervision of a court. To watch a short video explaining probate, check out Samarah’s blog discussing it. Or learn more about when probate is required in Samarah’s blog titled When is Probate Required?

Simple Will Administration

A lot of people think that the beneficiaries named in a will receive their inheritances immediately after the passing of the testator. In reality, the executor that is named in the will would be required by law to admit the document to probate.

During probate, there is a proving of the will, so the court reviews the document to determine its validity. Final debts are paid during this process, so creditors are notified, and they are given time to come forward seeking satisfaction.

The assets that comprise the estate are identified, inventoried, and secured by the executor. They will establish an estate bank account and pay the final debts. At the conclusion of the process, the assets will be distributed to the beneficiaries per the wishes of the decedent.

Probate Pitfalls

While probate serves a purpose, it is not necessarily positive for the rightful inheritors of an estate. First, with regard to the time factor, it will typically take at least eight months in most jurisdictions if there are no complications.

First, no inheritances are distributed while the estate is still in probate, so the beneficiaries have to play a waiting game. This is an inconvenience for many, and it can create hardships for people who were relying on the decedent for support.

Secondly, probate expenses include the executor’s remuneration, court costs, appraisal and liquidation charges, and potential legal and accounting fees. These expenses reduce the value of the estate before it is transferred to the inheritors.

Thirdly, probate is a public proceeding, so interested parties can access the records to find out how the estate was distributed. This information can lead to hard feelings among people that were close to the decedent.

Guardianship Matters

The probate court also handles guardianship proceedings. This applies to minor children, and guardians are sometimes named to manage the affairs of incapacitated adults.

Asset Transfers Outside of Probate

There are some types of asset transfers that are not subject probate. Life insurance proceeds fit into this category, and the probate court is not involved when an individual retirement account is transferred to a beneficiary.

Property that is held in joint tenancy will transfer to the surviving joint tenant or tenants outside of probate. The beneficiary of a payable on death account would assume ownership of the funds after the primary account holder’s death, and probate would not be a factor.

Proactive Probate Avoidance

If you want to devise your estate plan in a way that will avoid probate, you can use a revocable living trust. Assets in the trust would be distributed to the beneficiaries after passing outside of probate, so the drawbacks that we have looked at would never enter the picture.

Our Lawyers Are Here to Help!        

At Parman & Easterday, we can help if you would like to work with a probate attorney to develop a plan. You can call our office at (913) 385-9400 to schedule a consultation, and you can alternately use our contact form to send us a message.