Most people don’t know much about probate, except that they want to avoid it. In our recent workshop for probate administrators and trustees, we noticed that a lot of the attendees submitted the same questions. Below are the 5 most asked questions about probate and trust administration, with answers from probate lawyer Tasha Lyn Cosimo.
1. What should I expect after my loved one passes away?
After your spouse, parent, or sibling passes away, you may or may not have to go through probate, a court-supervised process that determines the distribution of the deceased person’s assets.
If your loved one had an effective estate plan in place, including trusts, payable on death accounts with beneficiaries, and beneficiary designations for 401(k)s and life insurance policies, you may not need to undergo the probate process.
However, if your loved one dies intestate—meaning, without a will—their assets will be distributed according to state laws of intestacy. Every state has different laws, so be sure to speak with a probate lawyer or estate planning attorney if you have questions.
2. Will we have to go through probate if the deceased person had a will?
A will alone is not effective to avoid probate court. In fact, wills must go through probate when there are probate assets, as that is the legal process that implements the provisions of that will. If the deceased person had named a personal representative or executor of their estate, they will gather all assets and clear up outstanding debts and taxes, and ultimately be in charge of carrying out the wishes set forth in the will.
Probate can be a simple formality for smaller estates that also have assets in living trusts. However, it can be complex, time-consuming, and costly when no living trust is involved.
3. What happens if my loved one dies without a will?
If someone dies without a will, the court will determine the distribution of their assets based on state laws of intestacy, taking the decision out of the decedent’s hands. Every state has its own laws. Ask a probate lawyer about the law in your state.
The best way to ensure your assets are distributed per your wishes is to prepare a robust estate plan. Likewise, to ensure that your loved one’s assets are distributed according to their wishes, ask them if they have an estate plan in place before it’s too late. If they don’t, encourage them to find an estate planning attorney who can help.
4. I have been named as a personal representative…what do I have to do?
As a personal representative, it is your responsibility to collect the deceased person’s assets and prepare an inventory of their property. You can also expect to clear up debts, or any taxes they owed. You may need to sell assets in order to pay these debts. You will also distribute assets and close the estate.
In short, it is your job to ensure the estate is closed and assets are distributed per your loved one’s wishes; however, the court must first give the personal representative authority to act before any of these duties can be performed.
5. How long is the probate court process?
The answer is: it depends. The amount of assets and debts in the estate will impact the length of the probate process, as well as whether there is a will, how easy it is to get in touch with beneficiaries, and whether the distribution of the estate is disputed by anyone. Typically, an estate can be probated in 9-12 months, so long as it is a routine probate, though there are plenty of examples of cases where the probate process lasts much longer.
Creating a living trust is an easy way to avoid probate entirely if that trust is properly funded. A trust and estate planning attorney can help you create, and fund, a trust in such a way that your loved ones will not be forced to undergo the probate process.
Other steps to take to avoid probate include naming beneficiaries on retirement and investment accounts, as well as holding property jointly rather than independently. However, we always recommend contacting an estate planning attorney before making these decisions to determine if such actions will accomplish your estate planning wishes.
Whether you are concerned that someone you love does not have an estate plan in place, or want to ensure that your spouse and/or children are not subjected to the probate process should something happen to you, our estate planning attorneys can help. Contact us today to learn more about our services, or register for our next virtual estate planning workshop where you’ll be able to learn about estate planning at your own pace, with the option to ask your most burning questions about wills and trusts, probate, trust administration, and more.