Many people have heard of “probate,” but there are a lot of misconceptions floating out there about it. First and foremost, many people believe they can avoid going to court and going through probate if they have a Will.
In reality, a Will, also known as Last Will and Testament, is the legal document that is to be used in probate court if a person dies with assets that are in their name alone without a surviving joint owner or beneficiary designated, says the Record Online in the article “Anatomy of a probate proceeding.” The probate process proves the will is valid.
Probate is a judicial or court proceeding where the probate court has jurisdiction over the assets of the person who has died. The court oversees the payment of debts, taxes and probate fees, in addition to supervising the distribution of assets to the person’s beneficiaries. The executor of the will is the person responsible for managing the probate assets and then reporting the activities to the judge.
Without a will, things can get messy. A similar court proceeding takes place, but it is known as an administrative proceeding, and the manager of the estate is called an administrator, and not the executor.
To start the probate proceeding, the executor completes and submits a probate petition with the probate court. Some executors do this on their own, but most hire an estate planning attorney to help. The attorney knows the process, which keeps things moving along.
The probate petition lists the beneficiaries named in the will, plus certain relatives who must, by law, receive legal notice in the mail. Let’s say that someone disinherits a child in their will. That child must receive notice to learn he or she has been disinherited. Beneficiaries and relatives alike must return paperwork to the court stating that they either consent or object to the provisions of the will.
A disinherited child has the right to file objections with the court, and then begin a battle for inheritance that is known as a will contest. This can become protracted and expensive, drawing out the probate process for years. A will contest places all of the assets in the will in limbo. They cannot be distributed unless the court says they can, which may not occur until the will contest is completed.
The will contest can be resolved in two ways: with a settlement between the parties involved, or with a jury trial. It is always possible that the disinherited person could prevail and be awarded a certain amount of the inheritance, regardless of what the decedent said in their will.
In addition to the expense and time that probate takes, while the process is going on, assets are frozen. After the court is satisfied with who the executor should be, the judge will issue “Letters Testamentary”. Only then can the executor start doing anything with the property. They must open an estate account, apply for a taxpayer ID for the account, collect the assets and ultimately, distribute them, as directed in the will to the beneficiaries. Keep in mind, however, that distribution cannot happen until the court gives the all-clear.
Can a will contest or probate be avoided? Avoiding probate, or having selected assets taken out of the probate estate, is one reason that people use trusts as part of their estate plan. Assets can also be placed in joint ownership, and beneficiaries can be added to accounts so that the asset goes directly to the beneficiary.
By working closely with an estate planning attorney, you’ll have the opportunity to prepare an estate plan that addresses how you want assets to be distributed, which assets may be placed outside of your estate for an easier transfer to beneficiaries and what you can do to avoid a will contest, if there is a disinheritance situation looming.
Reference: Record Online (August 24, 2019) “Anatomy of a probate proceeding”