If you have questions about probate, this article is for you. Many people have heard the term “probate” but don’t fully understand how it relates to them. Probate happens after a person dies, and their assets must be distributed either through intestacy laws or a will. Probate can be a complicated matter, but it’s important to get a basic understanding of probate principles and topics.
This article will discuss key probate terms and provide a basic understanding of how the process works and what you need to know to handle your affairs.
Probate Defined
Probate is the legal process that happens after an individual dies. If the person dies with a will, it is considered testate and intestate if they die without a will. The main focus of probate is to transfer assets from the deceased individual to their heirs or legatees according to their will if they had one or the laws of intestacy if they did not have a valid will.
The court has authority over probate matters and will oversee the distribution of property and will appoint an executor if one was mentioned in the will or an administrator if there was no will. The judge will authenticate the will and sign a judgment of possession that puts the legatees into ownership of the property. Not all properties are required to go through probate. Life insurance policies and assets held in trust and those with designated beneficiaries will generally not have to go through the probate process.
Probate Terms You Should Know
Asset Distribution – Assets are distributed according to the decedent’s will, if there was one, or the laws of intestacy if they did not have a will. Debts and probate expenses are deducted first, and whatever is left over is distributed according to the will or state law.
The executor of the Will – An executor can be named in a will or may be court-appointed. This individual handles the deceased individual’s estate during the probate process. If there was no will, the executor, or administrator has a duty to protect estate assets, pay expenses and debts, and work with beneficiaries to distribute estate assets properly.
Valid Will – A valid will follows state law and can be probated in court. This means that the will must meet the standards set forth by law. Multiple types of wills can be executed, with the most popular types being an olographic will and a testamentary will. An olographic will is written entirely in the handwriting of the person making the will. A testamentary will has a strict set of rules that must be followed, or it can be held invalid in a court of law. This is why speaking with an estate planning attorney is important to get it done correctly.
Validating the Will – The court will validate the will during the probate process. If the will is invalid, then the court will apply intestacy laws. Another party may challenge the will in court if there are any disputes about its validity.
How to Avoid Probate
Probate is a costly and time-consuming process many people would like to avoid. The average probate matter could take months if there are no issues and no one contests the will and years if the will or other parts of the probate are contested. It’s also expensive to bring a probate case to court and may involve hearings, expert witnesses, court costs, and high attorney fees. Many estates are dwindled due to debt and expenses, and nothing is left to distribute after the probate process.
The entire probate proceeding is a matter of public record, and anyone can walk into the courthouse and obtain copies of your probate documents. This may include a list of your assets, the value of your property, and whom you left the property. Not only is this a privacy concern, but you may not want the world to know what assets your loved ones have received from you.
There are multiple ways to avoid probate, such as establishing a trust, maintaining joint property ownership, and naming beneficiaries on your life insurance policies and retirement accounts. An estate planning attorney can show you different ways to avoid probate so you can choose the options that best suit your circumstances.
Contact an Attorney
Progeny Law Firm assists clients with estate planning in Baton Rouge, LA. Call (225) 465-1090 or contact us online for a free consultation. Sign up for our free educational seminars.
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