No one wants to think about their own death or that of a beloved family member. But creating a will and understanding will probate guarantee that your belongings are distributed fairly and according to your wishes.
The more you know about the will probate process and executing a will, the better you can protect your assets and preserve your legacy.
Here you'll find a breakdown of what happens during will probate and the steps you can take to prevent it.
Is Will Probate Necessary?
Will probate is not always necessary following someone's death. In fact, probate is often reserved for large, complicated estates that include large sums of money, businesses, or real estate.
The most common reason a will goes to probate is if the deceased wants to transfer ownership of a property to a beneficiary.
Different states have different laws surrounding the will probate process. Some states require probate even if the deceased doesn't have a will.
The ultimate goal of the probate process is to ensure the decedent's debts and bills are paid off and that the remainder of the estate is properly distributed to beneficiaries.
Probate vs. Non-Probate
It's important to understand the difference between probate assets and non-probate assets. While both are listed in your last will and testament, they're handled very differently.
Non-probate assets are often left to beneficiaries without dispute and aren't eligible for use toward paying off the deceased family member's debts. Probate assets, on the other hand, can be liquidated and used however the probate court sees fit.
The probate process involves the court system authenticating the will and then using probate assets to pay final expenses. These include all debts and taxes. Whatever's left over is then distributed to the rightful beneficiaries.
The more assets you can list as non-probate items, the better. These assets go directly to the beneficiaries as listed in your will and forgo the probate process. This means the state can't come after your beneficiaries for such assets.
The courts will use the available probate assets to pay off as much debt as they cover and take a loss on the rest.
Probate assets are any assets owned solely by the deceased. These often include:
- Personal property (jewelry, furniture, collectibles)
- Bank accounts
- Real estate property
- Interest in a partnership, corporation, or limited liability company
- A life insurance policy that lists the deceased or the estate as the beneficiary
Non-probate assets include property and monies that are shared jointly between the deceased and another party. These include:
- Bank accounts with payable on death (POD) or transfer on death (TOD) beneficiaries
- Property held in a trust
- Property that is jointly owned
- Retirement accounts
- Life insurance policies that list a specific beneficiary other than the deceased
A lawyer experienced in estate planning law can help you create a last will and testament that appropriately protects and allocates your funds.
Steps in the Will Probate Process
While each case is handled differently, here are the basic steps in the will probate process.
Authenticating the Last Will and Testament
The person in possession of the deceased's will presents it to the probate court for review. Anyone objecting to the will has the opportunity to speak at this time.
Most wills include a self-proving affidavit which is signed by both the decedent and witnesses who were present when the will was signed. If the will doesn't contain this affidavit, the judge may call upon other witnesses to authenticate the document and its contents.
Appointing an Executor
The judge will then appoint an executor or administrator who is responsible for settling the estate and overseeing the probate process. Most people include their desired executor in the will as a trusted family member.
Once appointed, this individual then has control over the deceased individual's assets as they relate to settling the estate.
A bond acts as an insurance policy to protect the decedent's personal assets and reimburse the estate if the executor damages the estate either intentionally or unintentionally.
Locating the Assets
This is one of the most difficult jobs the executor is tasked with. It's now time to locate and calculate all of the deceased individual's assets. This is much easier when the deceased has a will that breaks down and details all of their assets, possessions, and final wishes.
Executors must also uncover any hidden assets that the deceased may or may not have told family members about. Executors are also tasked with making sure any property or real estate bills stay current until the time of sale. This includes paying the mortgage, property taxes, and insurances on property owned by the deceased.
The executor can legally take possession of other physical assets including jewelry and vehicles during the probate process. They must collect any necessary paperwork and documentation to present to the court.
Death of Values
The executor must now calculate and total the value of the decedent's assets. Most executors elicit the help of an appraiser for this part of the will probate process.
Notifying Creditors and Paying Debts
Now that the executor has calculated the deceased individual's assets, it's time to calculate their debts. Once done, the executor must notify all creditors of the individual's passing. Some states even require that a death notice be published in local newspapers to alert any unknown creditors.
The executor can now start using the decedent's assets to pay off any and all debts, including those incurred during their final days.
Prepare Tax Forms
The executor must also file taxes on the decedent's behalf for the year in which they died. This includes estate taxes, if applicable.
Distribute the Estate
Once all of these steps are taken, whatever's left of the deceased individual's assets can now be distributed to the rightful beneficiaries. This step usually requires the court's permission.
The executor must first prove that they calculated all of the decedent's assets and debts and paid them off.
Let Us Help You Simplify the Will Probate Process
It's upsetting to think that your last will and testament isn't always enough to protect your assets and final wishes. Although it's a step in the right direction, sometimes, will probate is necessary.
In this case, let our team of professionals help simplify the process. Your family has gone through enough and should focus on grieving, not sorting through mounds of paperwork and legal requirements.
Contact us for more information on how we can help you prepare for the future and avoid financial headaches for your loved ones.