Probate and the distribution of a person’s assets after death have to be low on anyone’s list of things to discuss with an elderly loved one. It could be why AARP reported that only 40% of adults have taken steps to plan for the distribution of their estate with a will or living trust. Not wanting to face the inevitability of death may be one reason for this, but a lack of understanding about probate and the probate process may also be a factor.
Passing on your wealth to your loved ones should be a private matter and not one involving court proceedings that are open to the public, but such beliefs betray a misunderstanding of the probate process and alternatives that may be available. A look at the purpose behind the probate process and how it works may help eliminate some of the uncertainty about it and also make it easier to discuss estate planning with seniors in your family.
What is probate?
In order to understand probate, you need some basic information about a last will and testament or, as it is commonly called, a will. A will is a legal document your estate planning attorney prepares that contains instructions for the handling of your financial affairs in the event of your death.
As a general rule, wills usually include a clause naming a person to serve as the executor of the estate following the death of the maker of the will. The executor is someone designated to handle the financial affairs following the death of the will’s maker, including distributing assets to the heirs of the maker according to the terms of the will.
Probate laws differ from one state to another, but regardless of the state in which the maker of the will died, authentication of the document as being the last will and testament of the deceased is the primary function of the probate process. At a time when telemedicine is replacing visits to a doctor’s office for many people, it may seem odd to force families into a court proceeding while they are grieving the loss of a loved one, but preventing fraud by verifying the validity of a legal document is only one of the functions of the probate process.
The probate process
The process of probating a will begins with the filing of a petition along with the original will with a court designated under state law to handle probate cases. The person named in the will as the executor or a member of the family of the deceased is the person who usually brings the will to an attorney who prepares the probate petition.
Contents of the petition include the name of the person designated to serve as the executor and, the names and addresses of persons identified as beneficiaries inheriting under the terms of the will. Notice of the probate is sent to all parties listed in the petition along with a date for a formal hearing. At the hearing, the judge assigned to handle the probate will do the following:
Authenticate the will: Depending upon the law in a particular state, the judge hearing the case will either hear testimony from the individuals identified in the will as witnesses to its signing by the maker or review sworn affidavits from the witnesses. The purpose is to verify that the maker of the will actually signed it and publicly acknowledged it as their last will and testament.
Hear challenges to the will: Even though the testimony or affidavits of the witnesses to the will confirm that it was signed and acknowledged in their presence by the maker, other parties have the opportunity to challenge the will or its terms. For example, a person may claim they are excluded from sharing in any inheritance because of duress or coercion asserted over the maker of the will by other parties. The party challenging the will has the burden of presenting evidence to convince the judge not to allow the will to stand as representing the wishes of the deceased.
Admit the will to probate: If the judge hearing the probate case is satisfied of the authenticity of the will and that it represents the wishes of the deceased, the court issues an order, called “letters testamentary.” The letters testamentary officially appoint the executor named in the will as representative of the estate with legal authority to act in that capacity. This appointment by the court empowers the executor to gather and manage the assets of the deceased and use them to pay debts and funeral expenses, pay taxes owed by the estate, pay legal fees and court costs associated with the probate, and distribute the remaining assets to the beneficiaries according to the terms of the will.
Oversee the handling of the estate: Executors must file reports that allow the probate court to monitor that the estate is being handled properly. At the conclusion of the probate process, a final accounting from the executor must be submitted and approved by the court. The final accounting shows what came under the control of the executor in terms of assets and income collected from them during the probate process. It also shows payments made by the executor on behalf of the estate and the final distribution of remaining assets to the beneficiaries.
Probate has been around for what seems to be forever to provide court-supervision of the handling of a deceased person’s financial affairs to ensure their wishes and instructions are carried out. Critics of the probate process claim it takes time and incurs expenses that could be avoided through other methods of handling an estate.
Alternatives to probate
Estate planning can incorporate alternatives to a will to carry out your wishes about the distribution of an estate without the necessity of probate. A trust is a legal document created by an attorney that takes effect during your lifetime. Assets transferred to the trust are managed and controlled by a trustee who you choose.
The trustee follows terms of the trust agreement created by your attorney to manage and invest trust assets. Upon your death, assets in the trust are distributed to the beneficiaries named in the trust agreement, but the distribution takes place without the need for probate.
Whether a trust or a will is right for you is something to discuss with your estate planning attorney. The attorney will recommend a plan tailored to your needs.
Steve has been writing legal-centric articles for several years now. He started working with the personal injury attorney law firm Herrig & Vogt in 2019 as the Content Marketing Manager, which has allowed him to expand on his writing in personal injury, family law, and much more. Steve strives to offer the public advice on various laws covering a variety of practices.