A Guide to Probate

The American Bar Association (ABA) notes that probate is the legal process that acknowledges a will and appoints a personal representative (executor) to administer the estate to intended beneficiaries.

Navigating the probate process varies according to state law. Therefore, it is wise to contact a probate lawyer to determine whether the estate is small enough to bypass formal probate. They can also advise whether the fiduciary must be bonded (this requirement is often waived in the will) and what reports need to be prepared.

The Uniform Probate Code

In more recent years, states have tried to simplify their probate procedures. The Uniform Probate Code (UPC) consists of laws written by a group of national experts to help standardize and streamline probate. Most states have adopted these standards. As a result, the probate process is becoming more consistent and efficient across state lines.

Probate Attorneys Help Navigate or Avoid Probate

However, this does not mean you shouldn’t meet with a probate attorney. Individual states still have different monetary thresholds for what constitutes a lower-value estate that can bypass part or all of the probate process.

Even when estate planning tools help avoid probate, administering a complex estate is easier with legal guidance. An attorney can support the executor or personal representative by helping provide the local courts with death certificates, required forms, and communication with beneficiaries. Their goal is to keep the probate process as simple as possible.

The essence of probate involves the following:

• Determining and proving the decedent’s will
• Submitting an estate inventory and appraisal of the decedent’s property
• Ensuring the estate’s taxes and debts are paid in full
• Making sure every estate asset is distributed in accordance with the decedent’s will or the state’s intestacy laws.

Probate Attorneys Help Executors Through Estate Administration

The estate’s personal representative is responsible for initiating court procedures and distributing assets to named beneficiaries.

If the personal representative fails to initiate probate proceedings, any interested party may begin the process. These parties typically include beneficiaries or creditors who have an interest in the estate.

When there is no named personal representative, or they are unwilling or unable to serve, the court appoints someone to oversee probate. You may also hire a probate attorney for assistance.

Time frames for beginning probate vary by state. They usually begin on the decedent’s date of death and range from three years to more than twenty years. Some states, including California, have no deadline for filing a will for probate.

Removing Conflict and Debt Negotiation

After gathering and filing the required paperwork, a disgruntled heir or someone excluded from the will may challenge the probate proceedings. They may contest the validity of the will or raise other legal objections.

These disputes can delay estate administration. Estates with significant debt may also require property to be sold before creditors are paid. A probate attorney can help mediate conflicts, remove emotion from difficult decisions, and negotiate debts.

If the probate process is expected to be lengthy, immediate family members can request short-term support funds from the court in many states. Probate has earned its reputation for sometimes being time-consuming and expensive.

When heirs agree with the will and the distribution of assets, the probate process is often straightforward. In those situations, the executor provides the local court with the decedent’s will, a certified death certificate, a list of heirs and their addresses, and a list of known creditors.

Maintaining Privacy

When disagreements exist among heirs, it is often worthwhile to resolve them before probate begins. Doing so may help avoid legal challenges to the will.

Once probate is filed, the proceedings become part of the public record. Most families prefer to keep matters relating to a loved one’s death and inheritance private.

Delaying probate for too long can create more complicated and expensive issues. If family members need time to resolve concerns before filing, it is generally better to do so sooner rather than later.

Avoiding Probate with Estate Planning Tools

Although some probate cases can take years to complete, most do not. Many estate planning attorneys help clients reduce or avoid probate by using tools such as a revocable living trust.

A revocable living trust allows property to pass outside probate. Other options include titling property with survivorship rights or naming beneficiaries on accounts such as IRAs. Estate planning attorneys use these strategies to minimize probate whenever possible.

These planning tools may include:

• Annuities, life insurance policies, and retirement funds with named beneficiaries
• Pay-on-death or transfer-on-death accounts
• Property held in joint tenancy with rights of survivorship
• Property held as tenancy by the entirety
• Property held in a legal trust

Most individuals want to minimise the probate process when creating an estate plan. This approach is especially valuable for larger and more complex estates because probate costs can reduce the estate’s inheritable value.

Smaller estates can also benefit by using strategies that transfer property outside probate. Discuss your wishes with your estate planning attorney to create a plan that minimises probate. If you are already serving as a personal representative and the estate plan is unclear or there is no will, a probate lawyer can help you determine the best path forward while protecting the estate’s value.

If you’re looking for an estate planning attorney in the Mount Dora, Florida area, please give us a call or drop us a line! We look forward to hearing from you!