There are many situations in which a family fights over their deceased family member’s property. These situations don’t always end with possessions and property being fairly divided and potentially going against the wishes of the dead. Problems like these usually occur because of no written Will for the asset distribution. To avoid this, people write one while they are still alive, confident of proper distribution of assets when they die.
“Following the proper procedure, the legal distribution of the deceased’s property can still be possible without writing a will,” says Probate Attorney Samah Abukhodeir of The Florida Probate & Family Law Firm. One of the processes for accomplishing this is through probate. Probate is a court-supervised proceeding that verifies and approves the right person to distribute the deceased’s assetswhether or not there is a written will.
Who Can File For Probate?
When someone dies, a legally eligible individual can file probate by filing a petition with the local probate court. These individuals can be the Executor or the Administrator.
Who is an Executor?
An executor is an individual named in a Will who is legally obligated to handle the remaining financial obligations of the deceased. The executor has the authority to distribute whatever remains in the estate to the Will beneficiaries after paying off all taxes and debts.
In a probate action, an executor is under an obligation to carry out the instructions contained in the Last Will. If the executor fails to carry out these instructions, the beneficiaries may petition the court to order the executor to do so or remove the executor.
Who is the Administrator
The administrator is the individual appointed by the court to distribute the deceased estate. When it involves an Intestate (a deceased who died without leaving a will), the administrator distributes their estate according to the state intestate succession laws.
According to state laws, the deceased assets go to heirs or specific classes of family members through intestate succession. Intestate succession statutes aim to ensure that the administrator distributes the estate in a systematic and orderly manner. However, each state has specific laws that govern the distribution of property.
How the Probate Process Works
When a person dies, the deceased estate has to be settled and distributed, whether there is a written will or not. Though state laws may vary when it comes to probate, the probate process usually involves the following steps:
#1. Filing a Probate Petition and Swearing in Personal Representatives
The executor or administrator begins the probate process by filing a Petition for Probate with a local probate court. Afterward, the executor or administrator will swear an oath to the court to distribute the deceased asset according to the law.
The executors and administrators are called the personal representatives. Letters Testamentary and Letters of Administration issued by a probate court confirm them as executor or administrator, respectively.
#2. Estate Valuation and Notice to Beneficiaries and Creditors
After swearing in the personal representatives, the next step is to notify potential beneficiaries and creditors that the deceased is dead. The Personal representatives may publish notices in local newspapers or through other means of communication.
The next step is to determine the value of the deceased estate. The first task to accomplish before the estate valuation is a complete assessment. It includes everything the deceased owned.
Sometimes, this process may require a professional appraiser, particularly in larger estates. A professional appraiser is familiar with gathering and taking inventory of all real estate, personal, and household items to determine their value.
#3. Debts Payment and Distribution of Remaining Asset
Once the estate has been valued, the next thing to do is pay off debts from the deceased estate with court permission. Large estates may be subject to both the federal estate tax and state-level estate taxes in the few states that impose them.
After debt payment, the personal representatives will distribute any remaining assets to the appropriate Beneficiaries. The Personal Representatives will transfer deeds and titles into the name of the correct Beneficiary, as directed by the Last Will or the court.
Avoiding the Entire Probate Process
Many people avoid probate for some reasons. Probate can take a long time if there is no written Will. Another reason why people run away from probate is the cost involved. While probate cost varies by state, it generally includes executor fees, administrative expenses, and legal fees.
The longer the probate process, the more likely the process fees will be higher. People also avoid probate for privacy reasons. Probate proceedings are open to the public, unlike establishing a Trust which keeps asset distribution private.
To reduce all this stress and pressure on your loved one, choosing the following strategies can help avoid probate:
#1. Establishing a Living Trust
One of the common ways to avoid probate is to establish a living trust which is an alternative to a will. Unlike a Will, which distributes assets upon death, a living trust places assets and properties in trust. A trustee then manages the trusts for the benefit of your beneficiaries.
Since the property and assets are distributed to the trust already, you can avoid probate entirely. Thus, when you die, the named Trustee manages all of the assets in the trust according to your instructions.
#2. Designate Beneficiaries to Certain Benefits
Some prefer the Last Will because they feel it is a less complicated estate planning document. However, just because you have a written Will does not mean that all of your assets must go through probate.
Some assets can be transferred directly to a designated beneficiary without the need for probate. It is achievable by naming beneficiaries ahead of time. The essence is to make sure they receive some benefits without having to wait for probate. These include benefits of :
- Life insurance policies
- Certain retirement accounts
- transfer-on-death deeds
- Payable-on-death accounts
#3. Title Assets Jointly
Another excellent way to keep your real estate from going through probate is to hold it jointly. In a joint-ownership of assets, the assets can be transferred from one person to another when one party dies without going through the probate process. It is also essential to clearly define this ownership by holding assets as:
- Community property with the right of survivorship
- Joint tenancy with right of survivorship
- Tenancy by the entirety
Writing a Will is essential for protecting the interest of your loved ones and ensuring the proper distribution of assets according to your wish. However, it is best to seek legal guidance before drafting one. Also, estate holders attempting to keep their property out of probate should consult a probate attorney for valuable legal advice.