Most people know or have heard of the probate process, but many are unaware of why the process is necessary or what it entails. In this article, I will breakdown some of the basics so you can walk away with a better understanding. As with every legal question however, your own case situation and details can significantly change an analysis that otherwise appears straightforward, so in every instance, you want to speak with an attorney to confirm you are handling things the right way, so as to minimize any potential personal liability.
What is Probate?
Probate is the legal process by which a court will appoint an individual as the estate’s representative, who is called either the Administrator or the Executor. Once appointed, that person can present their authority (demonstrated with Letters Testamentary or Letters of Administration) to banks and can then distribute funds from the decedent’s account, or can sign a deed to transfer real estate, etc. They handle the administration of the estate, including (1) gathering all assets and understanding the scope of the decedent’s bounty, (2) paying off debts the decedent accrued, and (3) distributing remaining assets to the appropriate beneficiaries (those named in the will, or those determined by state law, where there is no will).
Why is Probate Necessary?
In some cases, where planning has been done, for example, it is not! But, in many cases there is something that needs to be done in probate court. The most common example usually involves the decedent’s home. We cannot simply sell the property without first having someone who is legally authorized to complete that sale on behalf of the estate, even where the property is owned by a married couple and one spouse survives (in most cases).
Another common example is to access or distribute a bank account. If Aunt Sue had a bank account at ABC bank, and did not have another account owner who still has access, and did not name a pay on death beneficiary for that account, the bank will need to see Letters from a court authorizing someone to manage and access that account, in light of Aunt Sue’s death.
Is Probate Always Necessary?
I answered this one already, but to revisit: NO. For families who have properly set up a trust, for example, all properties should be owned by the trust which does not typically have to go through the probate process. Other than a trust, other actions may have been taken to avoid probate, such as the use of transfer on death deeds and pay on death beneficiary designations at banks, etc.
In some cases, probate is unnecessary due to the simplicity of the decedent’s estate. So, if Aunt Sue was living in an apartment or a facility and did not own any property, did not have her own bank accounts or car, and there are no accounts that the family has been unable to access, and no debts in her name, for example, it may be unnecessary as there does not appear to be anything to “administer.” This is always best reviewed with a trusted attorney to avoid an improper conclusion, only to face a more difficult process years later, perhaps.
My Loved One Left No Will Behind, Can We Still Probate?
Yes, but the state’s default laws will dictate who receives the property, etc. Even when someone did not sign a will during their lifetime probate may be necessary (and in some cases, moreso because of the lack of will). The process will likely be costly and time-consuming when there is no valid will, however. This is because there are several more steps in the process to determine the appropriate legal heirs, ensure they are properly notified, etc. But it is certainly possible and quite common, unfortunately.
I hope this helps with some of the common questions that come up, and a very basic breakdown of probate, when it is necessary, what the process is, etc. I will go into more details regarding these processes in future posts, but I am happy to answer any questions about your situation in the meantime. Should you have any, feel free to reach out or click here to secure a spot in my calendar. I only meet with a limited number of people each week.
