When planning for the future, ensuring your wishes are respected after you pass away is paramount. A key aspect of this planning involves creating a will. But once you have a will, what happens next? A common question that arises is: if your will is filed with the court, will it go through probate? Understanding this process can help clarify what to expect and how to better prepare your estate.

Understanding Probate

Probate is a legal process that takes place after someone dies, during which a court oversees the distribution of the deceased person’s assets according to their will (or, if there is no will, according to state laws). The primary purposes of probate are to:

1. Validate the will.
2. Inventory the deceased’s assets.
3. Pay any debts and taxes.
4. Distribute the remaining assets to the beneficiaries named in the will.

Filing a Will with the Court

Filing a will with the court typically marks the beginning of the probate process. Here’s how it usually works:

1. Submitting the Will

When someone passes away, the person in possession of the will (often the executor) files it with the probate court in the county where the deceased person lived. This is a legal requirement in most jurisdictions.

2. Starting Probate Proceedings

Once the will is filed, the probate process officially begins. The court will usually appoint the executor named in the will to oversee the administration of the estate. The executor’s responsibilities include managing the deceased’s assets, paying any outstanding debts and taxes, and distributing the assets to the beneficiaries.

3. Validating the Will

The court must validate the will to ensure it’s legally binding. This involves checking that the will was properly executed, with the necessary signatures and witnesses. If there are disputes about the will’s validity, the court will resolve these issues during probate.

Do All Wills Go Through Probate?

Not all wills automatically go through probate, but most do. Several factors determine whether probate is necessary:

1. The Size of the Estate

Some states have simplified probate procedures for small estates, which can bypass the full probate process. The threshold for what constitutes a “small estate” varies by state.

2. Types of Assets

Certain types of assets don’t require probate. These include:

• Jointly Owned Property: Property owned jointly with rights of survivorship passes directly to the surviving owner without probate.
• Beneficiary Designations: Assets like life insurance policies, retirement accounts, and payable-on-death (POD) accounts go directly to the named beneficiaries.
• Trusts: Assets held in a trust bypass probate and are managed according to the terms of the trust.

3. State Laws

Probate laws vary significantly by state. Some states have adopted the Uniform Probate Code (UPC), which standardizes probate procedures and can simplify the process.

Benefits and Drawbacks of Probate

Benefits:

• Court Supervision: The probate process is overseen by a court, which can help ensure that the executor handles the estate properly.
• Debt Resolution: Probate provides a structured process for paying off the deceased’s debts, which can prevent creditors from pursuing beneficiaries later.
• Clarity and Finality: Probate can help clarify and legally confirm the distribution of assets, reducing potential disputes among heirs.

Drawbacks:

• Time-Consuming: Probate can take several months to several years, depending on the complexity of the estate.
• Costly: Court fees, attorney fees, and executor fees can consume a significant portion of the estate’s value.
• Public Record: Probate proceedings are public, which means details about the estate become part of the public record.

Avoiding Probate

To avoid the drawbacks of probate, many people use estate planning tools such as:

• Living Trusts: Assets placed in a living trust are managed according to the trust terms and bypass probate.
• Joint Ownership: Property owned jointly with rights of survivorship passes directly to the surviving owner.
• Beneficiary Designations: Ensuring that all accounts and policies have named beneficiaries can prevent them from going through probate.

Conclusion

Filing a will with the court typically initiates the probate process, but whether probate is required depends on various factors including the size of the estate, the types of assets involved, and state laws. While probate has its benefits, such as court supervision and debt resolution, it also has drawbacks like time and cost. Understanding these factors and utilizing estate planning tools can help manage the process more effectively and ensure your wishes are honored.

Consulting with the Davis Schilken, PC team can provide personalized advice and help navigate the complexities of wills and probate, ensuring a smoother transition for your loved ones.