Managing a loved one’s estate that’s gone into probate can be overwhelming and more than a bit confusing. But it doesn’t have to be. Here are some probate basics that can help you start to understand this process.
With proper estate planning, you can avoid a lot of the drama often associated with legal proceedings.
Most people don’t know how to properly plan their estates or the granting of their final wishes – so remaining family members are left to sort through an often-confusing mess. But if you understand what probate is – and how it benefits you – you can take the first step to avoiding drama and confusion.
What is probate law?
Technical definition: Probate is a court-supervised process where a will or a trust is established to be the decedent’s valid will. It concerns validity.
But probate also applies to instances where someone is incapacitated, or when there’s a trust that’s been established (and there is a dispute that needs to be resolved). In general, probate refers to any court proceedings that deal with the deceased or incapacitated person’s affairs. (Probate court does not apply to murder, malpractice or other wrongful death cases.)
Translation: Probate is the first step in the legal process after someone dies, or if a living person is unable to make further decisions about his or her estate. The parties involved in settling the estate will go to probate court where a judge (no jury) will review the case and help straighten things out to settle the affairs of the deceased or incapacitated person.
Probate court accomplishes five basic things:
- Proves that the deceased or otherwise incapacitated person’s will is valid (this is usually straightforward)
- Appoints a person to be in charge of gathering and inventorying assets, paying debts, and distributing the assets
- Pays any outstanding debts and taxes
- Resolves various disputes that can arise, such as who gets what personal property or how much the house should be sold for
- Distributes the remaining property as the will directs (or under state law if there’s no will).
Benefits of Probate
Probate sometimes gets a bad rap. It’s expensive, it’s scary, it’s overwhelming: These are just a few complaints I hear often. There are regulations in place, however, to protect you. Lawyers can charge only what’s considered a reasonable amount for their service in probate.
Here are a few of the benefits of probate that make it a worthwhile proceeding.
- Probate gives you options. You can have a say in making sure things are taken care of correctly, according to directions given in the deceased persons’ will.
- Probate gives heirs and beneficiaries a voice. Probate gives you recourse should you need help as a beneficiary and heir to make sure the will is carried out properly.
- Probate provides perspective. In probate you get the benefit of having multiple people look at issues from various angles, which makes it more likely that you will find a decision that everyone will agree on.
For the most part, probate is a relatively quick and easy way to work out these details. Most cases get resolved within a few months.
To sum up, probate is a court that you can go to whenever someone either dies or becomes incapacitated. It’s a way of not only resolving issues that come up, but also of preventing issues both for the protection of the person in charge and for the other heirs involved.
Do you have any questions about probate? I’d love to help. Leave a comment below or give our office a call.