Are All Wills Probated?

By Kristin Shea

Probate is a legal proceeding whereby a court determines the validity of a will, settles challenges to the will and oversees the distribution of assets left by the decedent. A probate court also appoints an executor, usually the person named by the decedent in the will. Not all wills are subject to probate, however. Review the laws of your state to determine if a will is subject to probate.

Probate is a legal proceeding whereby a court determines the validity of a will, settles challenges to the will and oversees the distribution of assets left by the decedent. A probate court also appoints an executor, usually the person named by the decedent in the will. Not all wills are subject to probate, however. Review the laws of your state to determine if a will is subject to probate.

Reasons to Avoid Probate

Avoiding probate saves time and money. Depending upon the complexity of the estate -- and amount of assets and debts involved -- beneficiaries might wait a long time before they receive their bequests while the will maneuvers through the legal process. The probate process also costs the estate money, and thereby diminishes the value of the gifts distributed to the beneficiaries. If the estate is small or relatively straightforward, spending money on court costs and attorneys’ fees might not make sense.

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Reasons to Probate

Avoiding probate is not always desirable. If a will is probated, creditors of the estate must file their claims by the statutory deadline, which is often a much shorter time-period than the deadline if the will is not submitted for probate. Creditors’ that fail to file their claims by the deadline cannot collect debts from the estate or beneficiaries at a later date. Even for seemingly straightforward estates, the probate court can temper potential disputes between beneficiaries by lending legal authority to the distribution of assets. In some circumstances, probate can assuage concerns about the executor’s judicious, competent, honest handling of the estate. Some more complex estates might require the court oversight to ascertain the value of assets, liquidate or maintain specific assets, hire professionals or otherwise guide the process.

Lack of Assets

An estate with no assets can avoid probate. In some cases, a decedent’s lack of possessions at time of death occurs unintentionally. The Southern Illinois University at Carbondale Legal Clinic, SIUC, offers another scenario, however, in which a person transfers assets to children or other trusted family member. SIUC warns that transferring your property to other people can have unintended consequences that might leave you in difficult financial circumstances.

Joint Tenancy with Rights of Survivorship

Governed by tenancy law, joint tenancy offers advantages and disadvantages. All joint tenants have full rights of property ownership. Upon the death of one joint tenant, property interest passes automatically in its entirety to the other joint tenant or tenants. During the joint tenants’ lives, however, this type of ownership interest can cause unintended problems. For one, the property is subject to the claims of all joint tenants’ creditors. With regards to joint tenancy of a bank account, moreover, any joint tenant can withdraw the entire amount from the account.

Revocable Trusts

A revocable trust, also called a living trust, is an instrument in which the grantor creates a trust that names an individual or entity as trustee. The grantor and trustee are often the same individuals. Because the trust retains ownership of property transferred into the trust, the decedent does not own the property at the time of death. Although this device can avoid probate, initially establishing a revocable trust costs money. Very specific rules govern the format for a revocable trust. If the instrument is not set up properly, the property will still be subject to probate.

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Family Trust Planning Guide

References

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What Are the Benefits of Placing Property in Family Trusts?

A family trust is an estate planning tool with many benefits, including avoiding probate. A family trust, more commonly known as a revocable trust, holds property for the benefit of named beneficiaries. A trust can be more complicated to form than a will, but is more flexible and can be used for more purposes.

Beneficiary Vs. Personal Representative

The death of a loved one is always a difficult time for family and friends. As such, a solid understanding of the probate process, which is the legal process of administering an estate, and the parties involved, helps the process move along smoothly and keeps unnecessarily stressful situations at bay. Two important players in estate administration include the beneficiary and the personal representative. While these two players have vastly different responsibilities, they are firmly connected to each other throughout the entire probate process.

Does the Executor of Will Debt Need a Beneficiary's Signature to Pay Off Assets & Debts?

When an individual creates a will, he will likely name a personal representative, or executor to handle his estate. The executor of an estate is charged with managing estate assets, including paying estate debts such as funeral expenses and estate attorney fees. The executor will also ultimately make distributions to those named in the will, known as the beneficiaries.

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