When a will is reviewed to determine its validity, it goes through a process known as probate. In other terms, probate can also be referred to as the administration of a deceased person’s estate who died without a will.
When a person dies, the court will assign an executor of the will (either named by the will or picked by the court). This person is responsible for collecting and taking inventory of the assets of the deceased. The executor must then pay the liabilities of the estate and distribute the assets to the heirs as outlined in the will.
The probate process is quite lengthy. It often lasts one year or longer, and it is costly (averaging anywhere from three to seven percent of the total value of the estate). It’s important that you consult with an experienced estate planning attorney from Armstrong, Fisch, & Tutoli, Attorneys at Law about your will so that your family can avoid the difficult process of probate upon your death.
When Probate is Required
There are specific circumstances where probate will be required after the death of a family member. These include the following:
- There is no valid will
- The existing will has presented problems
- The decedent does not have any beneficiaries
- When a valid will requires probate to deal with creditors
The common frame of thinking when it comes to estate planning is that when there is no valid will, the estate will always wind up in probate. While this is the case, having a will does not automatically help you avoid the probate process either.
A will can wind up in probate when any of the following problems arise:
- The will was never notarized by the decedent
- The will was never signed by the decedent
- A self-proving affidavit was not attached
- The decedent moved to a new state and the current will does not match the new state’s laws
- The beneficiaries of the will contest its terms
- There are multiple wills
What is the Probate Process?
As mentioned earlier, probate is a very lengthy process. If an estate is required to enter into probate it means that the executor cannot simply begin handing out assets to the beneficiaries named in the will. Instead, a specific process must be followed:
- File a petition to open probate
- Executor sends notices to interested parties (beneficiaries) and creditors
- The executor takes inventory of the estate’s assets
- The executor distributes the estate’s assets
- File a petition to close the estate
How to Avoid Probate
One of the best ways to avoid going through the probate process is to have a trust in place prior to your death. Trusts are legal documents that protect assets and other financial interests from probate. You can add just about any asset of your choosing to a trust so that it is not divided by the court or awarded to someone who you wish not to receive it. Other ways in which you can avoid probate include the following:
- Give away as much property as possible prior to your death
- Create joint ownership for real estate property (community property for married couples, joint tenancy with rights of survivorship, and tenancy by the entireties)
- Set up pay-on-death financial accounts
- Joint ownership for other property
- Transfer on death for vehicles
- Transfer on death for securities
- Transfer on death for real estate
- Take advantage of estate provisions found in your state’s laws
Finally, create a will. A will does not necessarily mean you will be able to avoid probate but it can help reduce the cost of the process for your family. The will can help protect assets that are unable to avoid probate.
Concerned About the Probate Process? Contact the Armstrong, Fisch, & Tutoli, Attorneys at Law Today
The compassionate and skilled team at Armstrong, Fisch, & Tutoli, Attorneys at Law can answer all of your questions surrounding probate, wills, and estate planning. The probate process is lengthy and costly. Protect your family from going through this long and stressful process by putting together a solid estate plan now. Call our office to schedule a consultation with a member of our team today.