What is Probate?

Probate is the court proceeding in which a deceased person’s Will is filed with the court, and the court confirms the Will is valid and if so, formally appoints the person named in Will as the executor of the deceased person’s estate.

Do All Wills Go Through Probate?

Not all wills and estates have to go through probate. Even if a Will does need to be filed with the probate courts, this may be a simple procedure with little court oversight. Whether a will has to go through probate or not depends mostly on the type of property in the estate, how it is owned, and state laws.
Although probate may sound complex and expensive, it’s actually a very common legal procedure. This is the way that some assets are formally passed from the deceased to his or her beneficiaries.  If a deceased person owns assets in his or her individual name, their Will need to go through probate in order to distribute those probate assets to the beneficiaries named in the Will.  However, if the deceased person owns jointly held assets or assets with a named death beneficiary (i.e. an IRA or a life insurance policy), those assets are non-probate assets that are not subject to probate and are distributed by operation of law to the surviving joint owner or death beneficiary.  

Do You Need to Probate if There Is a Will?

If the decedent held assets in her individual name, then the Will needs to go through probate. If the decedent had no will but owned assets in her individual name, then an administration proceeding, rather than probate, is required. If you are named in someone’s will as an executor, you have to apply for probate with the court, and when the probate proceeding is completed, the court gives you the authority to distribute the probate assets of the deceased according to the will. If an administration proceeding is required, one of the decedent’s closest living relatives applies to be appointed administrator of the estate by the court, and the court gives that relative the authority to distribute the estate to the decedent’s closest living relatives as defined by state law. 

Depending on the decedent’s assets and how they are owned, you do not always need to probate to execute the will. Probate validates the deceased person’s will in order for their wishes to be carried out by the executor. 

If wills are not probated in a timely manner, the probate court may require an explanation for the delay.

Assets that don’t have to go through probate include:

  • Retirement accounts in which a beneficiary was named
  • Life insurance policies in which a beneficiary was named
  • Property held in a living trust
  • Funds in a Payable on Death (POD) account

Why Is It Good to Avoid Probate?

The main benefits to avoiding probate:

  • Avoiding legal fees – Legal and attorney fees can be costly, especially if there is property in multiple states since probate proceedings would need to be held in multiple states. If the deceased person had a trust, this can be avoided.
  • Saving time – Going through the court process and simply gathering assets and paying off debts can take months or even years.
  • Maintaining privacy/avoiding anything going on your public record

 

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