Estate Planning
What is the Probate Process?
The court process used to settle the estate of a deceased person is called “probate.” This court-monitored procedure is used to distribute a decedent’s estate as well as to determine which creditors will receive payment and in which order. Although a decedent may not have prepared a valid will prior to his or her death, their estate will still proceed through the probate process as directed by the laws of the state in which the decent was domiciled prior to death or the state in which the decedent died.
Probating the Estate
Although the probate process and rules may vary depending on the jurisdiction in which the procedure takes place, probating an estate generally involves:
- Petitioning the court to probate the will
- Sending notice to creditors, beneficiaries and any other interested parties
- Collecting, inventorying and appraising all estate assets
- Collecting any payments, debts and income due to the estate
- Paying any debts owed, and filing and paying local, state and federal taxes
- Distributing any remaining assets to beneficiaries as directed in the terms of the will
Probating Small Estates
Many states offer an expedited or simplified probate process for smaller estates that meet certain criteria. Distinguishably from probating a large estate, a small, less complex estate is not generally required to be directed by a probate court, but instead is probated before an “administrator,” this process provides a much more time and cost efficient way to complete the probate.
Disadvantages of Probate
Time and expense: The general timeframe associated with probating an estate can take anywhere from six months to more than a year. Because of their size and complexities, some large estates may take several years to probate. Additionally, disagreements to the legitimacy of a will can further increase the duration of the process. The costs associated with probate can be quite expensive as they may require a large number of attorney and court hours to settle; however, oftentimes these costs may be deducted directly from the estate in probate.
Lack of privacy: Keep in mind as well that because probate matters are subject to public record laws, anyone may learn the size, contents and beneficiaries of an estate brought to probate. Oftentimes this lack of privacy may result in tensions and/or disputes among family members.
Intestacy: If an individual dies without a valid will, that person is considered to have died “intestate.” As such, there are no legal directions a court may use to distribute the decedent’s estate and their assets are subject to the state’s default inheritance rules or applicable estate plan. Generally, state inheritance laws distribute assets to the surviving spouse and children of the decedent first, followed the parents and other close family members. It is important to remember that the absence of a valid will is likely to require that the estate is distributed as required by the state laws.
Probate Avoidance Planning
To avoid the time, expense and stress of dealing with complex probate matters, Luftman, Heck & Associates offers comprehensive will and trust planning services to ensure that your wishes and the wishes of your loved ones are properly attended to. Estate planning is an important tool from which a persons will of all sizes of estates can benefit. As such, there is no time too soon to begin planning for the distribution of your possessions. Our services can further aid by offering guidance in preparing:
- Wills, living wills, health care directives, and powers of attorney
- Trusts
- Probate, estate management, trust administration
