Though lots of scary stories float around, there is nothing inherently bad about probate. Simply put, probate is the legal, public process that brings closure to our affairs when we die. The court supervising the process is referred to as surrogate, probate or chancellor’s court. Most states offer expedited processes based on the assets involved—and most of us don’t have enough assets to actually provoke tax problems or other tangles.
Avoid The Hype
There are lots good reasons for the many of us moving into a another year without a will or more comprehensive estate plan to get on with it. Whether death is in the near or far future, those we love will certainly experience less stress if they don’t have to scurry around looking for documents, account codes, credit card bills and so on. Then too, it would likely be quite satisfying to rest assured that some assets, even if modest, are earmarked to boost our loved ones forward. These truths aside, however, it’s probably OK for most of us to avoid getting sucked into horror stories about probate litigation and federal tax liabilities. As Above The Law soberingly reminds us: “In a typical year, not even one out of every thousand dead Americans leaves enough behind to ultimately incur any federal tax liabilities. Unless you plan on dying next year with more than $12.92 million (it’s indexed for inflation), you probably don’t have to worry much about taxes.”
Realistically, it is good to understand that most families will work through their state’s probate process to settle the affairs of the deceased. While there is nothing inherently wrong with the probate process, it is a public one, and can take some time, usually a year or so, based on the circumstances. On the other hand, most families will avoid probate litigation, brought about through snags like unpaid taxes, debts, big conflicts among family members or contested wills. As Kennedy & Rusham Law explains:
The term, “probate litigation” refers to lawsuits filed in probate court — and the legal proceedings associated with resolving these lawsuits. Probate litigation may include:
- Contesting a will
- Disputing a trust
- Highlighting undue influence
- Disproving false claims from creditors
- Removing an executor for breaching their fiduciary duties
What To Expect from Probate
When there is a will, it must be filed in probate court following the relevant state protocols. The designated personal representative, typically referred to as the executor, must then follow the court-supervised process to settle debts (such as taxes) before assets are distributed. If there is no will, the court designates a representative, often referred to as an administrator, to manage the affairs of the deceased—and assets are ultimately distributed following the state laws of intestacy.
During probate, It is not uncommon for surrogate courts, sometimes also referred to as probate courts, to require a surrogate bond or probate bond. The terminology for these court bonds varies by state and circumstance, but the purpose is essentially the same: probate and surrogate bonds protect the interests of the estate and its beneficiaries in accordance with state law. When the court requires a probate or surrogate bond, it is critical to meet the deadline and avoid delays. That’s why Colonial Surety makes it easy and speedy to obtain every type of court bond with our direct, digital service: just get a quote online, fill out the information, and enter a payment method. The bond can even be e-filed right from court.
Good To Know
It is estimated that about two-thirds of Americans do not have wills, so any assets we have at death (aka our “estates”) will be passed onto heirs as determined by state laws of intestate succession. While intestate protocols vary, Above The Law offers this perspective: “Probably if you die without any estate plan, your net worth will likely go to your spouse, your children, or, if you did not have a spouse or children when you died, to your next closest relatives in specific proportions, spelled out in statute, that are difficult to fight about.” It is important to consider, however, that family structures have changed a great deal since most laws of intestate succession were created in the mid-twentieth century. So, for example, blended families, unmarried partners and other families that have forged their own structures, could find intestate succession laws challenging, as Michael Waters points out in The Atlantic:
In the decades since, the average family has undergone a radical shift, today comprising people who have children from prior relationships, unmarried partners, or nonbiological children (for instance, a grandmother or close family friend raising a kid). Today, nontraditional families that don’t have wills, in particular, can be thrust into a cruel legal limbo when a loved one dies.
Attorneys across the country count on The Partnership Account® for Attorneys anytime fiduciary or court bonds are needed to move cases and clients forward. This free service from Colonial Surety offers:
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Our fiduciary bond portfolio includes: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and more.
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