The public process of bringing the affairs of the deceased to closure, aka probate, tends to sound scary and off-putting, and is often surrounded by confusion, and misinformation. Here are simple answers to the basic questions about probate, a process most families will encounter at some point.
Understanding the Public Process of Settling Affairs
When we die, we leave behind bills, assets, digital accounts, belongings – the business of our daily lives. Careful and proactive estate planning goes a long way to arming loved ones with an easy path to closing out our affairs, but even still, there is work to be done. Unless a trust has been created to hold assets for their ultimate, private, distribution to beneficiaries, probate is necessary. Though it tends to get a bad rap, because it is public, takes time, and involves fees, the process of probate is not inherently bad, and in some cases can really turn out to be helpful. Here are answers to common questions about probate.
What is probate?
Probate is simply the public process of putting the affairs of the deceased in order. Generally this means following state protocols for ensuring debts are paid and assets distributed, either based on plans made in a will, or, absent a will, the state laws of intestacy. Attorneys at Chambliss, Bahner & Stophel provide this basic overview of probate:
Contrary to popular belief, probate doesn’t have to be a dreaded experience. In fact, understanding the probate process can demystify it and empower individuals to navigate it more smoothly, putting them in control … .Probate is the legal process through which a deceased person’s assets are distributed to their beneficiaries and heirs. The procedures can vary based on state law and the complexity of the estate. Still, it typically involves validating the deceased person’s will (if they had one), identifying and inventorying the assets, paying off debts and taxes, and distributing the remaining assets according to the will or state law. The process can take as little as several months or as long as a year or more to complete.
What are the advantages of probate?
Despite the tales of woe that tend to surround mentions of probate, there are advantages to probate: it provides legal oversight for the settlement of debt and distribution of assets, and can help prevent or settle conflicts. Attorneys at Weinstein Randisi offer this summation of the ways probate courts can turn out to be quite helpful: “The probate process helps protect the legacy of deceased individuals and the interests of their surviving family members. The courts can validate the authenticity and legality of estate planning paperwork. They can facilitate the administration of an estate that does not have a will or other planning documents in place. The probate courts, or Surrogate’s Courts in New York, can settle disputes among beneficiaries and help ensure that creditors and other interested parties receive what they should from an estate.”
If there is a will, is probate still necessary?
Yes, though a will dictates how the assets of the deceased are to be distributed to beneficiaries, the probate process is still necessary. Typically, the process begins with the filing of the will in probate court for validation. Then, probate protocols govern the timelines for notification of creditors, the filing of claims, and the resolution of debts before any assets can be distributed. Though this takes some time, attorneys remind us of the benefits, noting: “Probate provides a structured legal process for the orderly distribution of assets. Probate can help prevent disputes and ensure the deceased person’s wishes are carried out … .Probate is a shield that can protect a deceased person’s property from being taken or used by unauthorized people, providing a sense of security and protection.”
How are assets distributed if there is no will?
If there is no will, the probate court ultimately oversees the distribution of assets following the state laws of intestacy, which delineate the next of kin for the purposes of inheritance. Though there is nothing fundamentally bad about the laws of intestacy, attorneys do caution that in many states, they pre-date modern family arrangements, so absent a will, loved ones may end up not benefiting from assets. It’s also important to know that wills are the legal vehicle for designating a guardian for minor children. Otherwise, it falls to the court to appoint a guardian.
What are the complications that can arise during probate?
Not surprisingly, non-standard estate plans, such as omitting a child or spouse, or making a surprising or unusual gift allocation, can result in conflicts which escalate into probate complications and require probate litigation. Failed communication, relationship conflicts, or mistrust of the designated fiduciary, such as the executor or personal representative, are further examples of what can lead to the need for court intervention, but attorneys remind us not to confuse probate litigation with the ordinary process of probate:
“Most matters handled by probate courts, such as admitting wills and assigning executors, are standard and uncontested. Any legal contest that arises due to a person’s death or mental incapacity will be filed in a probate court and can be categorized as probate litigation. This process involves court battles among those still living over issues such as guardianships and conservatorships, powers of attorney, will or trust contests, and living wills.”
Who is responsible for completing the probate process?
When a will is made, an executor is designated to handle the affairs of the deceased in accordance with state probate protocols and the intentions expressed in the will. Absent a will, the court appoints an administrator, who settles affairs based on the state laws of intestacy. In some states, the term personal representative also refers to the friend, relation, or professional designated to bring closure to the affairs of the deceased. Ideally, proactive estate planning has paved the way for smooth closure, but in the event help is needed, probate attorneys can relieve families of some of the stress and responsibilities involved in bringing the probate process to an end.
What are probate bonds and how are they obtained?
Executors and administrators are fiduciaries, and are legally obliged to protect the interests of the estate and its beneficiaries in accordance with state law. As a guarantee, courts often require a bond, known as a probate, administrator or executor bond. A leading national provider of all types of fiduciary bonds, Colonial Surety Company, makes it easy and efficient to obtain bonds for probate court. Just get a quote online, fill out the information, and enter payment. Print or e-file the bond from anywhere—even before leaving probate court.
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