What Families Should Know: “What is Probate?”
As the nation’s largest professional resource for household relocation and estate liquidation, Caring Transitions is often hired by attorneys, banks and family members to help support the probate process. We are often asked questions about probate and in all cases we recommend our clients seek proper legal advice, as probate laws vary a great deal from state to state. Caring Transitions® is pleased to provide general information that follows and our local office can also recommend other resources to help you manage a loved one’s estate.
Probate is a court-supervised process of distributing assets when a deceased individual (decedent), has not established a living trust. When the distribution of assets is not clearly defined prior to death, families and heirs are left to sort things out through probate courts. The probate process involves locating, defining and determining the value of assets owned by the decedent. It also includes payment of bills and taxes and eventually, the process results in the distribution of remaining assets.
Probate Pros and Cons
Probate can be a lengthy, frustrating and expensive process for families, however establishing a living trust may be equally as costly and complex for those with a number of valuable assets. Probate fees may include the attorney, the executor, filing fees and court costs. The cost for a living trust includes legal and filing fees. Some individuals opt to purchase software or work on the basics through internet companies to reduce their overall costs. It is still recommended you consult an attorney at some point in the process.
Smaller estates may meet the state requirements for “summary” proceedings, which are a simplified and less costly form of probate. Refer to your county court website for more information on applications, forms and Summary Probate restrictions and requirements.
Probate is required
When the decedent does not designate new owners in advance, property typically has to be probated to remove the decedent’s name and legally name the beneficiaries. This applies to property owned solely in the decedent’s name and also when property is held ‘in common” with another owner. As mentioned above, if property was titled to a living trust before the individual died, probate is not necessary.
Bank accounts, insurance policies, IRAs and other such accounts that are “payable on death” may also need to be probated if the decedent never named beneficiaries for the accounts or if the beneficiaries have already died. This is referred to “predeceased beneficiaries.”
Even if the decedent has a Last Will and Testament, probate may be required if any of the property has not been designated or if living beneficiaries were not named.
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