What is probate is a frequently asked question by individuals entering into estate planning or entitled to inheritance. Probate is required to validate the Last Will and Testament of a person who has died. If no Will exists, a judge must appoint an estate executor to manage the estate and distribute assets according to probate law.
This article summarizes what is probate and why it is necessary. It is estimated nearly 80-percent of heirs do not receive intended inheritance. This occurs because outstanding debts, legal and administrative fees, and court costs must be paid before heirs receive their inheritance.
Strategies exist to protect assets from the probate process. Much depends on the value of estate assets, so it is best to consult with an estate planner or probate attorney to determine the preferred course of action.
Probate begins when a person dies. The decedent’s Last Will and Testament and death certificate are filed through probate court. The Will outlines decedents’ final wishes including funeral arrangements and distribution of assets.
The last will is used to designate a probate executor to administer the estate. Administrators are compensated for their duties and can be paid at an hourly rate, flat fee or percentage of the estate’s value.
Responsibilities of the Administrator are varied and depend on the type of estate assets owned. Oftentimes, decedents include a list of assets within the Will, along with property appraisals. If this list is unavailable, executors must take inventory and obtain appraisals for valuable assets such as real estate, motor vehicles, antiques or collectibles.
Most probate executors will require assistance from an attorney or estate planner. These services can be prepaid through estate planning. If not prearranged, the estate administrator can retain services when needed. Legal and consulting fees are paid through the estate.
Estate executors are responsible for paying outstanding debts owed by the decedent. These can include mortgage notes, automobile loans and credit card expenses. If the estate is unable to pay expenses, administrators can petition the court to sell assets.
Probate assets cannot be distributed to designated heirs and beneficiaries until all debts are settled and validated through the court. Administrators are required to provide documentation to the probate judge for review. Once the judge confirms the estate has been properly managed, probate settles and distribution of assets can occur.
Estate planners recommend appointing a primary and secondary administrator. If the primary is unable to perform duties, the second can quickly take over. Executors must be at least 18 years of age and never convicted of a felony. Administrators should be able to handle a variety of duties in a timely fashion, be good with finances, and able to respond well under pressure.
The probate process generally lasts between six and nine months. Much depends on the complexity of the estate and how well family members get along. When family dysfunction exists, it tends to magnify during probate. It is not uncommon for disgruntled heirs to contest the Will. This act can suspend probate for months and rarely accomplishes anything other than fattening the wallets of probate attorneys.
Executing a legal Will does not avoid probate, but can expedite the process. A Will is the only way for decedents to have the final say in how they want their personal belongings distributed. Preformatted Wills can be purchased at office supply stores or downloaded online. Last wills must be witnessed and notarized to be legally valid.