Probate is less stressful if you have prepared an estate plan and a Will that clearly defines your wishes, Beneficiaries, and Executor.
Executors and trustees both manage and distribute assets. But there are distinctions between their roles.
Executors distribute assets according to the terms of your will, under the probate court’s supervision, after your death. An executor’s responsibility is limited, with a lot of work in a short period.
A trustee manages the entire life of your trust, which may begin during your lifetime and can continue for many years after your passing. The responsibility could last for decades and requires long-term management of assets. A trustee does not report to a court.
If no Will or documentation states your final wishes, the probate process becomes complicated. Our attorneys can guide you through the probate process.
In general, below are the phases of a probate process:
Someone, usually your Executor or lawyer, will inform the court of your death and submit a copy of the death certificate to start the probate process.
The court authenticates your Will, ensuring it was signed and dated according to the law.
If a Will is present, a judge formally appoints the person you name as Executor (only in rare cases would the court overturn your choice). The Executor then oversees the process and settles your estate.
If there is no Will, the court will appoint a Personal Representative for this role. Usually, next of kin. A Personal Representative acts as an Executor would.
Posting a bond protects Beneficiaries against potential errors an Executor or Personal Representative might make during the probate process.
Bonds may be costly, but your estate will pay. Bonds are not always necessary, as some states will waive them if your Executor or Personal Representative is also a Beneficiary of your estate. You can also include a request to waive a bond in your Will.
During this phase, Executors or Personal Representatives find and inform potential Beneficiaries and possible creditors of your passing. Executors or Personal Representatives work with creditors to settle your debts using money from your estate.
An assessment by a professional appraiser determines the value of an estate and accounts for everything you own at the time of your passing.
While the probate case is pending, Executors or Personal Representatives open a bank account and use the account to pay creditors and obvious bills (outstanding credit card bills, utilities, funeral expenses, and so on), as well as taxes.
The Executor or Personal Representative distributes the remaining assets to Beneficiaries after paying all the debts.
How to Avoid Probate
The probate process is greatly simplified, or potentially even totally avoided, when you have a strong Estate Plan in place. The more planning you do now, the easier it will be on your loved ones after you pass.
One way to lessen the headache of probate, or even avoid it altogether, is by creating a revocable trust, sometimes called a living trust. Any assets you place into your Trust will bypass probate.
When you create and fund a Trust, you’re essentially making the Trust the owner of your assets. So when you pass, the named Trustee manages, per your instructions, all the assets inside of it.
There can be several benefits to avoiding probate, including time and cost. And, one of the biggest reasons people may hope to avoid probate is for privacy reasons. Probate processes are public, but creating a Trust keeps the distribution of assets private.
Items Subject to Probate Court
Knowing which of your assets are subject to probate can help you avoid the court process.