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What is probate?

People often assume when a loved one dies that family members simply divide up the assets according to the last will and testament. In reality, it is not that simple. The executor of the person’s estate cannot simply claim title to a house, car, or other assets and sell or dispose of them.

When an individual dies having signed a last will and testament during their lifetime and owning property or other assets in their individual name, their last will is filed with the probate court in their county of residence. The executor works through and under the supervision of the Clerk of Superior Court or comparable probate court to “administer” the deceased’s estate.

What happens during the probate process?

Lots of paperwork. The executor collects information about the person’s finances, including debts they owe and assets they own individually or jointly with others. The process allows the executor to take control of the deceased’s assets, determine what bills or debts are owed, request permission by the court to sell real estate and other property if required to pay debts or if directed by the last will, with the proceeds being paid to the estate under the supervision of the court. Once the assets have been sold (if necessary to pay debts), all expenses are paid from the estate. Any remaining funds are then distributed to the beneficiaries. It is important to note there may be tax implications for beneficiaries based on the size of the estate and the type of assets distributed, so seeking advice from a licensed CPA is also recommended.

Does every estate have to go through probate?

No. In cases where the surviving spouse or partner is listed as a co-owner on the titles to real estate or property, bank accounts, etc., probate may not be needed. This is also the case if the deceased had no debts and limited assets, or if all accounts, life insurance, annuities, etc. list beneficiaries to be paid directly. It is best to check with a probate attorney to determine whether you must administer an estate through the probate court.  Even if there is no “estate” to probate, an original last will of a deceased should be filed with the probate court.

Are there other ways to avoid going through probate?

There are several legal options that can be structured ahead of time to avoid probate. These include simple things like checking and savings accounts structured as a joint account with rights of survivorship or as one “payable on death” to named beneficiaries, and more complex options like various forms of trusts and other estate planning techniques.

What do I do if I am named the executor of the estate?

Start by locating the most recent original signed will and paperwork left by the deceased. Follow up with making an inventory of debts owed by the deceased and assets owned, including documentation of ownership, such as vehicle titles, deeds to real estate, life insurance policies, etc. Being an executor for a complex estate or one that is challenged by surviving relatives or beneficiaries can be confusing and time consuming. Hiring a probate attorney to help walk you through an often “more-complicated-than-expected” process may help you reduce stress and missteps, especially in cases where the will is contested or there are difficult or distant heirs with whom you must contend.

Learn more about probate or contact a probate attorney at Brinkley Walser Stoner today to learn more.