Probate is a term you’ll likely hear when you or someone you know is estate planning. Probate is the judicial process of validating a Last Will and Testament before the testator’s (the person who made the Will) assets can be distributed and their estate can be closed.
In this post, we’ll discuss the basics of probate and why it’s necessary for closing an estate.
How Does Probate Work?
The process of executing a will can be complex and time-consuming—taking anywhere from a month to over a year to completely close an estate. Probate, however, is usually only part of the beginning and end of a Will’s execution.
The probate process starts once a person dies and their Will is filed with the court. Often a Will must be filed anywhere between 10 and 30 days (depending on your state) after the testator’s death to be validated. If no Will is filed within the time limit, the deceased might be considered intestate (or dying without a Will), and then the state decides what to do with their assets.
Your assets will be subjected to the probate process with or without a Will, which is why it’s often best to create one to ensure you have your say.
When Is Probate Necessary?
For your last wishes to be carried out following your passing (also known as executing your Will), your Last Will and Testament must be validated by the probate court, which is a court that focuses on estate matters such as the execution of someone’s Will, the appointment of representatives for estates where testators haven’t named their own, or the settlement of any disputes over the Will itself.
If the Will isn’t valid in the eyes of the probate court (e.g. because of illegal clauses in the Will, because it wasn’t signed or witnessed properly, etc.) it is voided and the distribution of assets is left to the discretion of state law and the court. Usually that means your assets will go to your surviving family members, but you will have no say in who gets what (this could include relatives you might have a strained relationship with).
The only time probate isn’t considered necessary is when a person has placed their assets in a Living Trust instead of creating a Will. In a Revocable Living Trust, the grantor (the owner of the assets) leaves their assets in the charge of a trustee, who is a person (or corporation) appointed by the grantor and is responsible for distributing the assets to the grantor’s beneficiaries after his or her death.
Living Trusts are considered private contracts, and as such, bypass probate due to its nature as a public process (making the proceedings and documents public record).
If keeping your estate plan private is important to you, you should consider evaluating living trusts vs. last wills to see which document suits your needs best.
Who Starts Probate and Executes a Last Will?
Typically, Wills are filed by family members of the deceased, and then the executor (the person in charge of carrying out the Will) is sworn into their duties of closing the estate. If a named executor chooses to reject their duties and there are no alternate executors, the court will appoint a representative to handle the closing of the estate.
Once the Will is filed and validated, the executor or administrator can secure the assets; manage the finances and debts; distribute the remaining property, gifts, and assets; and file last taxes for the deceased. Once all of that is completed, the executor submits a final closing statement or Affidavit with the probate court, which closes the estate.
The Importance of Estate Planning
Regardless of whether you choose a Last Will or a Living Trust to protect your assets after you pass away, the important thing is to take control of your end-of-life planning.
As we mentioned above, with or without a Will, your assets will be liquidated or distributed to beneficiaries. However, if you’d like some say in how your affairs are handled, i.e. who gets all of your belongings, it’s best to plan with a Last Will or a Living Trust rather than leaving these major decisions up to the state and representatives of the probate courts.
If you do end up using a Last Will or you’re named as the executor to someone else’s Last Will, it’s a good idea to familiarize yourself with the probate and Will execution processes to give you an idea as to how assets are distributed and last wishes are carried out.
Is there anything else you want to know about probate?