Probate is a court-supervised process for transferring a deceased person’s assets. If the deceased had a will, then the probate process will distribute the assets to the beneficiaries listed in his or her will. If the deceased did not have a will, then the assets will be distributed according to state law. Proper estate planning before death, through the use of a revocable living trust, can eliminate the need for probate all together.
Typically a probate begins when the executor named in the will files a petition in court and seeks appointment. The executor would then take charge of the decedent’s assets, pay any debts and, after receiving court approval, distribute the rest of the estate to the chosen beneficiaries. If there is no will, a relative or other interested person could start the process. The terms “executor,” “administrator,” and “personal representative” are used by the court to refer to the person who is appointed to be in charge of the estate.
There are advantages and disadvantages to probate. One advantage is that the probate court reviews the personal representative’s handling of each estate, which can help protect the beneficiaries’ interests.
One disadvantage, however, is that probates are public. Your estate plan and the value of your assets will become a public record. Also, because lawyer’s fees and executor’s commissions are based on a statutory fee schedule, a probate may cost more than the management and distribution of a comparable estate under a living trust. Time can be a factor as well. A probate proceeding generally takes longer than the administration of a living trust.
If you need of an attorney to help begin the probate process, or just have questions regarding probate, please call for a free 30 minute consultation. We’re here to help you each step of the way.