When an individual passes away, specific personal, financial and legal issues must be resolved. As a means of ensuring such matters are addressed efficiently, and in accordance with legal principles, the law established a process known as probate. That said, probate can be complicated, time-consuming and bring about conflicts amongst the decedent's heirs.
While avoiding probate is always favorable, here’s what you need to know should probate be necessary.
The Probate Process
Probate is the legal process of settling a deceased person's affairs. Typically, the process is initiated to authenticate the validity of a decedent's will or organize how the individual's estate issues will be resolved. For individuals who authored a will before their passing, the probate court in the municipality within where they resided will review the validity of the person’s last will and testament. The will often address issues such as:
- Which heirs will receive the decedent's assets.
- How the decedent's debts will be paid.
- Who the executor (the person charged with carrying out the will's instructions) will be.
- The decedent's burial plans.
Should someone die without a will (intestate in legal terms), a probate court will appoint an estate administrator (the individual assigned the responsibility of resolving pertinent legal and financial issues), as well as determine who the decedent's legal heirs are.
Common Probate Issues
An individual's passing might bring forth issues that delay or complicate the probate process. Monetary assets could, unfortunately, elicit greed and contention amongst a decedent's heirs. Should such circumstances arise, the validity of a will could be challenged. In many instances, wills written with the assistance of an estate attorney are accepted by courts. However, if the decedent dies without a will, the contention of the deceased's assets could result in a more complex, drawn-out probate process that could last for many months, perhaps years.
When probate issues arise, the disputing party often retains the services of estate attorneys and appeal to a court to ultimately receive final rulings on the matters in question.
Ways To Avoid Probate
For individuals with large estates, significant assets or for those who believe their heirs might bear grievances, there are specific methods that can be used that may prevent the probate process. Particular methods include:
- The creation of a living trust in which the future decedent's assets are placed in a trust and overseen by a trustee, who follows the trust's directives after the decedent's passing.
- Tag financial accounts as “Payable on Death.” Many financial institutions give account holders the option of designation a “Payable on Death” or “Transfer on Death” designation to the beneficiary (beneficiaries) of their choosing.
- Establish joint tenancy. Identify someone (such as a spouse) as the co-owner of specific assets like a home or vehicle.
The probate process can be complex and challenging but may not always be mandatory. Our firm can help answer questions about the probate process or help prospective clients with their estate planning needs. For more information, please contact Auten & Willingham today to learn more about how we can assist you.