Q: What is Probate?
A: Probate is the official process of proving the validity of a will and appointing an executor or administrator to handle the decedent’s estate. When probate has been granted, “Letters Testamentary” or “Letters of Administration” will issue from the court.
Q: How can I Avoid Probate?
A:There is no one right way to avoid probate. The following are some of the ways to avoid probate:
- Pay-on-death designations – designating a beneficiary will help you avoid probate for bank accounts, government bonds, individual retirement accounts and, in many states, stocks and other securities.
- Joint tenancy – a form of shared ownership where the surviving owner(s) automatically inherits the share of the owner who dies.
- Living trust – a revocable living trust, created by signing a trust document, which allows for the transfer of property by distribution directly to the beneficiaries named in the living trust.
- Insurance – if you buy life insurance, you can designate a specific beneficiary in your policy.
- Gifts – anything given away during your lifetime does not go through probate.
Q: Does All Property Go Through Probate When A Person Dies?
A: No. Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure. Also, property that passes outside of your will — through joint tenancy or a living trust — is not subject to probate.
Q: Who Handles The Probate?
A: The executor named in the will is in charge of probate. If there is no will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the majority of the deceased person’s assets.
Q: Do I Need A Lawyer To Assist With Probate?
A: There is no requirement to use a lawyer, however, probate can be a complicated and long process. One minor omission, one failure to send a proper notice, or a missed deadline, can cause everything to come to a grinding halt or expose the estate to liability. It is best to seek the assistance of an attorney when dealing with probate, wills, and estate planning.