Losing a loved one can take a huge toll on the bereaved. At such a time, the last thing you want to deal with is complicated legal processes. Unfortunately, that is not uncommon after losing a loved one as families distribute the deceased’s properties among the beneficiaries.
Most people never hear about probate until they lose someone. What’s even worse is that the process can be time-consuming, costly, and emotionally draining.
If you are in the process of navigating probate, understanding how it works and what to expect can help you manage your expectations and get the best out of the process.
Probate is a court-supervised process of administering a deceased person’s estate. According to Attorney Cindy Nelson of Nelson Elder Care Law, “Probate is how assets formally pass from a deceased person to their beneficiaries.” If the deceased had a will, this process would involve proving that the will is legally binding, executing the dead person’s instructions, and paying their debts and applicable taxes.
Probate codes differ from state to state. Therefore, you must seek to know your state’s probate laws to ensure that you are well prepared. If a deceased person had a written will, the probation process is much easier. The will specifies who inherits a specific property, designates who to care for their children if they have any, and the executor.
If the deceased didn’t have a will, the court relies on the local intestate laws when deciding how the deceased’s property will be distributed. That is why it is always a good idea to hire a probate lawyer to help you manage and navigate probate courts, regardless of whether the deceased left a will or not.
Assets That Have to Go Through Probate and Those That Don’t
The probate process provides a legal avenue of managing the property of a deceased that was not legally transferred by contract law, trust law, and state titling laws. This means all assets, including household goods, jewelry, cars, buildings, and land, awarded in the deceased’s last will or those of an individual that died intestate need to go through probate.
If a person dies intestate, distribution of their property among their beneficiaries will happen under the state’s laws they resided in at the time of their death. But not all properties have to go through probate. Properties passed through state contract laws, state trust laws, or those titling laws do not go through the probate process. These properties include:
- Retirement funds that have named beneficiaries
- Life insurance that has named beneficiaries
- Pay-on death-accounts
- Annuities with named beneficiaries
- Joint tenancy properties with survivorship rights
- All trust property
- All properties held by tenancy
Other Things You Need to Know
Probate proceedings can be lengthy, with most taking many months or even years. The complexity of the process determines longevity of the process. Where there is an uncontested will, the process may not be as long.
The probate process is not free; in fact, it can be extremely costly. An average probate process can cost anything from 10 to 15 percent of the estate’s value in legal and administration fees.
Due to the cost of the probate process, most individuals opt to create a revocable living trust or titling properties with a survivorship feature with all beneficiaries listed as co-owners to avoid the costly probate process.