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Blog 2020 April What Is Probate? (Estate Planning 101)
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What Is Probate? (Estate Planning 101)

Posted By Kathryn Marteeny || 20-Apr-2020

Many people overlook probate in the estate planning process (or are even entirely unaware it exists), which can be a costly mistake.

Probate is the process of verifying the legality of a last will and testament in court and ensuring that the decedent's wishes are fulfilled. If those terms are confusing, don't worry—we'll clear them up in a minute.

Understanding the probate process can help you plan for your estate and preserve your legacy for future generations.

Terms You Should Know for Dealing with Probate

Before we discuss the ins and outs of probate, let's take a minute to cover some terms you'll want to know:

  • Decedent. A decedent is a deceased person.
  • Beneficiaries. Beneficiaries are the people who receive assets from an estate plan on behalf of a decedent.
  • Last will and testament. A vital part of any estate plan, the last will and testament allows a decedent to allocate assets to beneficiaries if they pass away or become incapacitated. An individual may also establish legal protocols like Power of Attorney using their will.
  • Trust. An individual can also set aside assets in a trust for beneficiaries. Unlike wills, trusts can also be used to effectively circumvent the probate process (this will become important later).

What Is Probate?

Courts want to make sure that, when people pass away, their wishes are carried out in accordance with a will (if they have on). Probate helps courts fulfill that goal.

When a decedent dies and leaves assets to beneficiaries like property, insurance policies (other than life insurance), retirement accounts, family heirlooms, etc., the court steps in and begins the probate process.

When a person drafts a will, they appoint an executor. The executor helps the court ensure that the will is followed to the letter, fulfilling the decedent's wishes. Many individuals appoint close friends or family members as executors, but an attorney, bank, or trust company can also fill that role.

To complete the probate process, the executor has to fulfill several requirements, such as notifying people in the will of the decedent's passing and working with those individuals to ensure they get whatever assets the decedent left them.

If the decedent had any outstanding debts, creditors also often play a vital role in the probate process. The court will typically only award beneficiaries assets after creditors have been repaid for any debts the decedent owed them. In other words, the court may seize assets in the will to repay creditors, and then distribute any remaining assets among beneficiaries once the debts are repaid.

Is Probate Good or Bad?

There's no right answer to that question. The intent of probate—ensuring a decedent's will gets carried out and nobody tampers with it—are good. However, probate can also be a long, expensive process—especially if friends or family try to contest the legality of the will.

For this reason, many estate planning lawyers suggest that individuals put large or valuable assets, like property, in a trust instead of a will. The probate process doesn't apply to living trusts if it's carried out correctly, so trusts can be a great way for individuals to ensure friends or family members get assets without having to go through probate.

If you're like to learn more about drafting a will or trust to safeguard your legacy for future generations, contact our office online. We can help you draft a comprehensive estate plan that protects your assets and liabilities.

Categories: Estate Planning

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