The process of carrying out a will may seem complex. After a loved one dies, it's often difficult to navigate next steps. Beyond funeral planning, and unforeseen expenses, family members and even friends can feel the weight of loss. Creating a last will and testament can help ease some of the burden. It's also important to understand: when does a will go to probate? This can help you, or loved ones plan for a sudden or expected death. There are several things you should know about the probate process.
Probate can sound like a complicated and overwhelming process. Yet, it is a very common legal process and is a way for certain assets to be passed onto the deceased beneficiaries. In this article, we will be discussing everything to do with the probate law and when it will be applied.
To create a last will and testament and ensure protection for your family in the event of a death, head to Wills.com. We offer step-by-step guidance on creating a legal will without need or expense for an estate attorney.
What Is Probate?
Probate is an estate administration procedure that is used in order for the court to distribute the decedent's property among his or her beneficiaries. The assets are legally passed down to the correct people.
If a person has a will in place, there are certain tasks that should occur upon death. First, it's important to understand legal definitions. A deceased person who has provided a will is known as a testator. When a testator dies, the executor of the will is responsible for initiating the probate process. Typically, the executor also serves as a financial advisor.
An executor will be tasked with filing the will with the probate court. Essentially, probate is the process by which a court determines the authenticity of an existing will. In the absence of a will, things can be more complex through probate law.
Do You Need A Will For Probate To Occur?
Probate can occur whether the deceased has a will or not. If someone dies with a will in place, then probate is recommended to take place to make sure that the wishes of the deceased are fulfilled. Additionally, the courts have to verify that the last will and testament is a legally binding document and is valid through appropriate witness signature.
However, if someone dies, and they haven't left a will, then the probate process can still occur. Especially if the deceased has property that needs to be distributed. If the deceased has an account that names a beneficiary, but the beneficiary has also passed, then due to the probate law the account will go through the court. During this process, the court will discover who is legally entitled to the funds and will pass them onto them under state law.
If the beneficiary is still alive, then the funds will be passed onto them. However, the probate process has still had to take place, to make sure that the right person is receiving the funds.
Do You Always Need To Go Through Probate
Not everyone wants to go through the probate process, and in some situations, you don't have to. In most general circumstances, probate is necessary
However, one reason why you may not have to go through probate is if the deceased didn't leave anything behind. This means that he or she did not have any money or valuables to pass on.
It isn't a legal requirement for a will or property to go through the probate process. However, to get legal ownership of property that hasn't been arranged to avoid probate, you need to go through the probate process. The one exception is the state of Florida, where there is a law that allows the family to own the decedent's property in their name, as long as it isn't sold and taxes are still paid.
Probate and States
The probate process differs from state to state. Some states require that all property must be inventoried before it can be distributed. Other states allow the executor to decide what happens to the deceased's property.
In most cases, the executor will sell off the deceased's property and pay out the proceeds to the beneficiaries. But sometimes, the executor may choose to keep the property and use it for themselves.
There are different types of probate that differ by state. Most states have a standard form of probate that is used. However, some states have more specific laws regarding probate. For example, in California, if your estate is under a certain amount of money it can be passed onto the beneficiaries through a much simpler process.
Depending on your state, the probate laws are different. However, in the majority of states, you are required to probate the deceased's will as soon as possible.
How Long Does Probate Take
Generally speaking, it takes anywhere between three months to two years to initiate and fulfill the probate process. It depends on the size of the estate and complexity of assets. Learn more about how long is a will valid after death.
A small estate usually takes less time than a large estate. The larger the estate, the longer it takes to get probate.
You should expect to wait at least six months after the death of the deceased for probate to begin. After that, you'll probably have to wait another year or so until the executor gets around to selling off the deceased's assets.
Avoiding Probate
As long as you plan really carefully, there are ways to avoid probate. This is because the probate process can be quite expensive, and can help avoid estate tax as well. Alongside this, by avoiding probate you can protect your privacy, as not all the records will become available to the public. You could carry out the wishes of the deceased yourself, and not file the will at the probate court. However, legally the assets wouldn't belong to the beneficiaries.
A popular way to avoid probate is the use of a revocable living trust. Your assets are placed into the trust, where the creator of the trust can still use them while they are alive. However, once they die, then the assets in the trust are passed onto the deceased beneficiaries, through a trust document. As a result, no probate process is needed.
Alongside this, your life insurance policy will pass property to the person who you name as the beneficiary.
Some retirement accounts can also pass outside of probate. The owner names the beneficiary, and the account's balance is distributed after the account owner dies. Joint tenants can also pass outside of probate. After one of the owners passes away, the other owner takes over.
Wills.com: Secure Your Assets Today
Probate can be a long and lengthy process, so it is understandable that people want to try and avoid it. Leaving a will is important, as you get to choose who gets which assets of yours, wills.com is a great way of creating a will online, that keeps everything safe and secure. However, it is difficult to avoid probate, especially if you want to legally obtain certain assets.
Not every state requires you to file for probate. However, you will notice that the majority of states do recommend it. It's best to file the deceased's will as soon as possible to start the process as soon as possible.