Question 1: What is probate? Probate is the process by which a court validates the authenticity of a deceased person’s will; appoints a personal representative; and oversees the resolution of the deceased person’s affairs. If a deceased person does not have a will, the court will appoint an estate representative, also called an administrator, who carries out the same duties as a personal representative. In addition, the court must determine the deceased person’s heirs, who will receive the deceased person’s property according to state intestacy laws.
Myth 1: Everyone must go through the probate process. Truth – Because the probate court only oversees the handling of accounts and property that were in the deceased person’s sole name and did not have a beneficiary, transfer-on-death, or pay-on-death designation, if a person dies without owning any accounts or property in their sole name, there is typically no need to get the probate court involved. By using strategies such as a revocable living trust, joint ownership, and beneficiary designations, a deceased person’s loved ones can avoid being subjected to the probate process.
Question 2: How do I avoid probate? There are many different strategies to avoid probate. Many people transfer their accounts and property to a revocable living trust to avoid probate. In addition, some items such as life insurance, retirement accounts, and annuities can be given to a chosen beneficiary by using a beneficiary designation. Additionally, accounts and property owned by the deceased person and one or more people as joint tenants with rights of survivorship do not have to go through the probate process because the surviving owner automatically becomes the owner.
Question 3: Is probate bad? The difficulty and expense of probate vary. Many clients wish to avoid probate because it is a public process, time-consuming, and costly. I also suggest to clients that it is important to avoid incapacity probate which is known as “conservatorship” and is much more cumbersome and costly than probate. However, some families and situations benefit from this court-supervised process to ensure that the deceased person’s wishes are carried out. If someone tries to deviate from the deceased person’s wishes, they must answer the judge.
Question 4: Why should I avoid probate? Most people want to avoid probate because it can include high fees and costs, significant delays and stress, and public dissemination of private information. In most cases, court records are public records, so, upon your death, anyone could get a copy of your will, a list of everything you owned and its value, who will receive your money and property, and other information you may wish to keep private.