When someone passes away, their estate must be properly settled in the eyes of the law and, more or less, under the supervision of the court system. The process of settling that estate is known as “probate”, and it can either be a very long and arduous process or a fairly simple one depending upon the preparations the deceased put into place before they passed on. Note that not all estates go through probate and not all assets are subjected to the rules of probate.
WHAT HAPPENS DURING PROBATE?
When an estate has to go through probate, the first thing you can expect is to have someone appointed as executor. This might be someone that the deceased nominated in their will. If there was no will or no nominee was named in the will, then the court will decide upon the executor of the estate. They tend to name individuals close to the deceased such as their surviving spouse or adult children. After being appointed by the court, the executor has the legal authority to value and gather the deceased assets in order to pay taxes and bills as well as to distribute to beneficiaries and heirs.
WHAT IS THE POINT OF PROBATE?
When someone passes away, their belongings and assets are not simply a “free for all” for whomever wishes to take them. Indeed, probate is designed to prevent this exact situation. By freezing an estate until the will can be verified and enforced – or, if there is no will, until the executor can be appointed and the beneficiaries named – the court system attempts to keep financial predators away from the deceased's belongings.
In addition to preventing fraud, probate is also a way to ensure that any debts held by the decreased are paid. This includes certain claims made by creditors as well as any taxes that they owed when they passed away. After all of this has been taken care of, the court will issue an order that serves to distribute the property in question, and the estate is closed.
If this sounds like a long process, that is because it can be one. It is almost always preferable to have a well-prepared will in place before death, but if that is not possible the next best option is to reach out to an experienced attorney who can help you through the probate process as quickly as possible.
ESTATES NOT SUBJECT TO PROBATE
As briefly mentioned above, certain estates and assets are not subject to probate. This includes estates that are below a certain financial threshold as well as assets that include the following:
- Joint Tenancy Assets
- Beneficiary Designations
- Transfer on Death/Payable on Death Accounts
Finally, if a living trust has been created, the estate of the decreased might not have to go through probate unless the estate's assets exceed a certain amount.
If you are facing probate or are wondering how you can prevent it in the event of your own death, reach out to Sara Doty, Attorney at Law, LLC, today for more information! Call us for an initial consultation at 256-519-9970.