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What Is The Probate Process?

Implementing the Last Will and Testament of a loved one after they have passed away can bring about a host of questions, and unexpected steps. This post provides a very basic guide to the Probate process, however, we highly recommend speaking to an estate planning lawyer as each probate matter is truly unique.

What is the Probate Process?

Though the Probate Laws of each state vary, the objective of the process is to authenticate the Last Will & Testament of the deceased, and to provide statutory parameters for distributing and closing the estate if the Will is found to be invalid.

Why is the Probate Process Necessary?

Similar to the designation of a manager when an Estate Trust is created, a Last Will designates a Personal Representative to carry out the wishes of the deceased regarding property, and financial decisions. A Will is distinguished from an Estate Trust in that when the deceased leaves a Will, the deceased’s estate must be closed, and all financial matters settled to end all interests and obligations of the deceased’s estate. In contrast, when the deceased has previously created an Estate Trust, the Trust becomes an entity that survives beyond the death of the creator, and continues to be managed by a person of the creator’s choosing.

What is Involved in the Probate Process?

It is important to know the specific Probate laws in the state where the deceased resided, however, the Probate process generally includes the Appointment of a Personal Representative. This is usually a person named in the Will, however, if that person does not wish to be the Personal Representative, the Law allows for the appointment of alternative representative. Once the Personal Representative is appointed, they are required to settle the estate by completing tasks such as identifying the assets of the estate, gathering information on creditors of the estate, notifying interested parties or beneficiaries, and calculating any taxes owed by the estate. Finally, the Personal Representative distributes any assets or funds of the estate and will request the Probate Court close the Probate process for that estate.

Each estate is unique and an estate planning lawyer can provide helpful guidance specific to your situation. If you, or a loved one, need assistance preparing a will, or preparing to open a Probate Matter, please reach out to Behrends Legal for a consultation to find out how we can help. info@behrendslegal.com , or 970-578-9455.

*This article is not intended to be construed as legal advice, and does not constitute the creation of an attorney-client relationship. Prior to making any significant decisions related to its content, you should seek the counsel of a licensed lawyer for your state.

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Differences Between Wills and Revocable Trusts

Although many legal documents can be used to distribute personal and real property assets when the time comes, some of the most common choices are to prepare a will, or a revocable trust. Moving forward in these matters can be emotionally challenging, but you have worked hard to build your estate over the course of your life, and creating an estate directive for your loved ones is one of the most loving things you can do. Your estate plan outlines your goals and wishes so your loved ones don’t have to guess, or go through probate court, or await the court directive.

What is the Difference Between a Will and a Revocable Trust?

            Wills are essentially a listing of personal assets with a directive regarding how the assets should be distributed, and is only effective at the time of death. This may seem similar to a trust initially, however, the Will must be filed with the local probate court, the beneficiaries of the will must pay the court fees to process the Will, and are subject to the timing of the court procedures. Further, the contents of the Will become part of the public record which is undesirable for many grantors who wish to maintain privacy.

            A Revocable Trust is created immediately, and can be added to, or changed during the life of the Grantor (the creator of the Trust). Some grantors prefer to use Trusts in order to provide directives for real property. Revocable Trusts are often preferred by grantors in order to retain privacy of their personal assets as the trust does not need to be processed by probate court. Trusts are administrated by a person of the Grantor’s choosing and designation. Sometimes an attorney will advise the drafting of a Will as part of the Revocable Trust. A Revocable Trust can also help the Grantor create a plan for future medical care if desired, as well.

There are many other benefits to preparing legal asset documents, and having a legal, documented estate plan is the best plan. It is important to create an estate plan that is personal to your situation and goals, with an attorney.

Reach out to Behrends Legal today to discuss your estate planning goals!

P: 970-578-9455

E: info@behrendslegal.com