Probate is a court process in which a decedent’s Will is proved valid or invalid. It is the legal process where in the estate of the decedent is administered. The probate of a will means proving its genuineness in probate court. Unless otherwise provided by statute, a will must be admitted to probate before a court will allow the distribution of a decedent’s property to the heirs according to its terms.
As a general rule, a will has no legal effect until it is probated. A will should be probated immediately when a person dies. His or her estate must go through probate, which is a process overseen by a probate court. If the decedent leaves a will directing how his or her property should be distributed after death, the probate court must determine if it should be admitted to probate and given legal effect. If the decedent dies intestate—without leaving a will—the court appoints a Personal Representative to distribute the decedent’s property according to State laws. These laws direct the distribution of assets based on hereditary succession.
In general, the probate process involves collecting the decedent’s assets, liquidating liabilities, paying necessary taxes, and distributing property to heirs. Probate proceedings are usually held in the state in which the decedent had domicile or permanent residence at the time of death. If, however, the decedent owned real property in another state, the will disposing of these assets must also be probated in that state.
Probate should be avoided as it is costly and public process. There are ways to avoid probate: (1) create of living trust; (2) name beneficiaries on your retirement and bank accounts [see the articles “Naming the Beneficiary of Your Life Insurance Policy Parts 1 and 2”]; and (3) hold property jointly in joint tenancy with right of survivorship.
One of the primary uses for a revocable living trust is to keep you property out of probate when you pass away. Avoiding probate court proceedings after death can save your family time, money and headaches. While it’s important to have a Will, a revocable living trust is often more meaningful in assuring that your affairs go smoothly and as you planned after you pass on.
More complicated situations make a revocable living trust even more valuable. It is a common occurrence for elderly people who, when they pass away, are married to people who are not the parents of their own children. Not surprisingly, an increasing number of people strive to accomplish two potentially competing objectives when planning for their inheritance: first, to financially support their surviving spouse and second, to leave an inheritance for their own children but not necessarily to the children of their last spouse.
It is nearly impossible to accomplish these objectives via a will, since a will passes title of your assets (be it a house or a bank account) with no further restrictions. A trust, on the other hand, can be purposefully set up to allow for certain funds or assets to be available for the surviving spouse during his/her lifetime but for the remainder, upon the death of the surviving spouse, to be passed on to the children of the first spouse to die. Furthermore, both spouses can create their own revocable living trusts to protect all their loved ones in the manner they individually see fit.