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Probate

What is probate?

Probate is the process by which the court validates the authenticity of a will; appoints the executor (aka personal representative); and supervises the settlement of an estate, including the payment of bills, filing of tax returns, and transfer of assets to beneficiaries. If no will is presented, the court will appoint an estate representative, called an "administrator." The administrator carries out the same duties as an executor; the remainder of the probate process remains the same whether there was a will or not, except that estate assets are distributed to heirs at law as determined by the state's intestacy laws, not beneficiaries chosen by the testator (aka the deceased who created the will).

Is probate bad?

Many people, but not all, think so. The difficulty and expense of probate varies from state to state and from family to family because of differences in state laws, family goals and personalities, and assets. Many clients wish to avoid probate because it’s a public process, time consuming, and costly. We’ll take a look at your full situation together and let you know whether a probate avoidance plan should be part of your estate plan.

Why should I avoid probate?

Most people want to avoid probate because it can include high fees and costs, significant time delays and stress, and public dissemination of private information. What do I mean by public? Anyone can hop on the Internet and see a listing of your assets, debts, beneficiaries, and who got what. If you’re like most people, you want to keep your family affairs and finances private, so probate should be avoided.

How do I avoid probate?

Only assets in your individual name or payable to your estate will go through probate. Many folks use a (fully funded) revocable living trust to avoid probate. In addition, contract assets such as life insurance, retirement accounts, and annuities as well as assets owned by joint tenants with right of survivorship avoid probate as well.

What is living probate?

“Living probate” refers to the court process necessary if you don’t have a disability plan in place and become incapacitated. It’s also referred to as “guardianship” or “conservatorship,” depending on state law. For your loved ones, it’s often a painful, arduous, and public process. We’ve found that most folks also want to keep their family and financial affairs private with a disability plan instead of dredging through a public court proceeding. Fortunately, living probate can be easily avoided with powers of attorney and living trust planning.

Will the state seize my assets if I don’t have a will?

No. It’s a common fear, but no. If you die without a will, state law will determine who inherits. It’s only if you have no distribution provisions in a will as well as no living relatives that your assets will go to the state. Your long lost cousin Sal will inherit before the state.

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