Memories come flooding in, emotions run high, and invariably drama can ensue. Family members whom you haven’t seen in years (or ever in some instances) are fighting over who gets to keep what.
When the dispute becomes too intense with no clear resolution being reached from either side, the courts can step in and decide how a deceased person’s assets are divided.
This is called probate.
Whether you’ve been named the executor of a will, want a small trinket as a special reminder, or have yet to draft your own will, knowing what probate is and how it works can help you navigate this emotional time.
Keep reading to learn more about the probate process, how it works, and how you can avoid probate should you desire.
What Is Probate?
Probate is the legal process where a probate court determines the validity and authenticity of a deceased person’s will. Whether the will is valid or not, or if there is no will, the probate court will also determine inheritors and prioritize paying off outstanding debts.
Wills are validated to ensure legitimacy. It’s not uncommon, especially with large estates, for multiple wills to start appearing after death. Most of the time the deceased drafted several wills over their lifetime and someone found an older draft.
The court will determine which of the wills is valid. The probate court has the final ruling on which will is valid and who the inheritors are.
How Does Probate Work?
Probate does not begin automatically when someone dies. If there is a will present then the will must be filed at the courts, if no will is present then paperwork must still be filed with the court.
With a Will
Typically the executor of the will file the document with the probate court. However, anyone in possession of a will may file it in court when that person dies.
After validation, the court will officially appoint the executor. The executor then has the legal powers to act on behalf of the deceased.
The executor’s responsibilities however are not so straightforward. The executor is responsible for distributing a deceased person’s assets to their heirs, and sometimes that means finding an heir or heirs.
Typically the executor is a family member so most executors are able to easily contact all heirs. However, there are times when there has been a falling out with a family member or a long-lost relative is listed no one has ever heard of.
In these cases, it’s important to note the executor cannot decide to who the assets go, but instead must execute the will as written by the deceased.
Without a Will
When no will is present an administrator is appointed over the estate rather than an executor. This also occurs when a will is deemed invalid and there is not another will to file.
Once the court has appointed an administrator the administrator executes similar duties to an executor. They are responsible for locating heirs and distributing the assets.
Again though the administrator does not necessarily determine who gets what The probate court will determine based on the hierarchy of heirs who gets what of the deceased assets.
If no heirs can be located and none come forward the state overseeing the estate can claim the assets for the state itself. However, there is a timeframe that must pass before that can happen.
Jointly Owned Property
Assets that are jointly owned can sometimes be tricky. Especially when one owner is still living while the other is deceased. The probate court in these instances uses a hierarchy of heirs.
At the top of the hierarchy is typically the surviving spouse. After that are any children the deceased may have had. Past that the courts will decide how the assets are distributed.
It is worth noting, however, that without a will friends of the deceased are not considered a part of the hierarchy of heirs.
Joint accounts are considered assets and are left to the surviving owner. In these instances the owner is a surviving spouse, however, any joint account with rights of survivorship will be distributed to the surviving owner. Regardless of the relationship with the deceased.
This also applied to co-owned property as well.
There are ways to avoid entering into probate. You may want to avoid probate in cases where you would like specific assets to go to specific heirs without writing a will.
It’s not a secret drama that unfolds when wills are discussed and brought up. Feelings can be hurt, and respect and loyalty can be turned into feelings of betrayal and rudeness.
Transfer Ownership Prior to Death
Rather than waiting until being deceased for an heir to take possession of an asset, you could transfer the ownership to the heir while alive.
This can be beneficial in certain situations where a person may be married more than once in their lifetime. Or possibly chooses not to marry the person they now share a home with (roommate, friend, significant other).
A living trust or trust fund holds onto the asset of the deceased. Trusts have designated beneficiaries and can specify how to distribute the assets.
When assets are placed in a Trust Fund the deceased is also able to dictate certain criteria for the heirs to meet prior to receiving their inheritance. This can include a child or relative attending college, using funds only to pay for a home, or reconnecting with the family.
Secure Your Heir’s Inheritance
Death is difficult to process. The loss leaves an ache that never really goes away. Many people handle grief differently and can react in extreme ways. Often this appears in the form of laying claim to a passed relative’s assets and can become aggressive.
To avoid these things and to help your loved ones grieve easier and remember the happier times you should understand the probate process. Whether in a will or without one, knowing how your assets will be divided can go a long way in helping your family through a difficult time.
Contact our team of experts today to help you with all your estate needs.