Updated: Aug 23
Probate is the formal court process where you pass your probate estate from you to your loved ones.
What is a probate vs. Non-probate estate?
Your probate estate are things that are in the deceased’s name that can’t be moved through informal means. These items typically include: homes, cars, business interests, and assets that do not have a payable on death beneficiary.
Any asset that has a valid payable on death beneficiary like a bank account or an investment account passes outside of probate and is therefore a part of your non-probate estate. However, there are lots of reasons why you would not want to pass your assets outright to your beneficiaries by naming them as a transfer on death beneficiary, such as creditor protection, divorce protection, or protection for underage minors or persons requiring medicaid.
What is involved with probate?
If there is a will, the will needs to be filed with the court, the court will review the will and accept testimony about the will, and then the court will appoint someone to be the Executor (Administrator) of the estate. The Executor can then gather the property of the deceased, pay taxes and debts, and distribute assets to the heirs, typically a process that takes 6-9 months.
Many clients find this process tiresome due to having to interact with the court, and the many deadlines. Further, property can be tied up for months or years depending on how long it takes to move through the process.
Sounds Bad, how can I avoid probate?
If your goal is to avoid probate you can set up your assets to pass without the need of probate. This can be done by using a combination of transfer on death beneficiary designations, and setting up a trust to receive your remaining assets and pass it to your family.
What happens if the deceased dies without a will?
In the event the deceased died intestate (without a will) the court will probably still be involved. For example, a court will still accept testimony about who are the rightful persons to inherit the deceased’s property because the court wants to make sure if there is a spouse, and that spouse is acknowledged. Alternately, the court would want to acknowledge if there are children, how many, and are there any unknown children. If an estate needs to be Administered without a will, the process will take much longer and is much more complicated. I usually tell my clients it will take at least a year and could last 2-3 years depending on the complexity of the estate.
There are also other forms of informal probate such as using small estate affidavits or affidavits of heirship that will work to transfer certain kinds of property. However, only an attorney can tell you whether or not that will work for you.
For more information you can call us at Chiang Law Firm PLLC to set up an appointment to find out what kind of probate process is right for you!