What is probate?
Probate is the process by which the court validates the authenticity of a will; appoints an executor (aka personal representative); and supervises the settlement of an estate, including the payment of bills, the filing of tax returns, and transfer of assets to beneficiaries. If no will is presented, the court will appoint an estate representative, called an "administrator." The administrator carries out the same duties as an executor, but when a person dies without a will, the court must determine the heirs of the deceased. The complexity and duration of this heirship determination process vary from state to state, but typically the remainder of the probate process, such as the payment of taxes and bills, remains the same whether there was a will or not. Of course, estate assets are distributed to heirs at law as determined by the state's intestacy laws, not beneficiaries chosen by the testator (aka the deceased who created the will).
How do I avoid probate?
Only assets in your individual name or payable to your estate will go through probate. Many folks use a (fully funded) revocable living trust to avoid probate. Also, contract assets such as life insurance, retirement accounts, and annuities as well as assets owned by joint tenants with rights of survivorship avoid probate as well.
Is probate bad?
Many people, but not all, think so. The difficulty and expense of probate vary from state to state and from family to family because of differences in state laws, family goals and personalities, and assets. Many clients wish to avoid probate because it’s a public process, time-consuming, and costly. We’ll take a look at your entire situation together and let you know whether a probate avoidance plan should be part of your estate plan.
Why should I avoid probate?
Most people want to avoid probate because it can include high fees and costs, significant time delays and stress, and public dissemination of private information. What do I mean by public? In most cases, court records are public records, meaning that anyone could get a copy of your will, the estate’s inventory, and other information you might wish to keep private. The ease of accessing this information does vary from state to state, and sometimes even from county to county. Some places even have online dockets, allowing anyone with an internet connection to see a listing of your assets, debts, beneficiaries, and who got what. If you’re like most people, you want to keep your family affairs and finances private, so probate should be avoided.
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