Probate is a complicated legal process with many misconceptions. Here is
a brief overview of probate and how comprehensive estate planning can
help simplify this complicated legal process.
It is the legal process of dividing a person’s estate.
First, it is important to understand what the term probate truly means. The term has a few different definitions depending on the context. If a person dies having prepared a will, then probate is the process by which the courts establish the validity of the will and distribute that person’s estate according to the terms set in the will. This process is also referred to as probating a will. If a person dies without having prepared a will (intestate), as is often the case, then probate is the process by which the state determines how a person’s estate will be divided. In this scenario, the laws where your loved one lived will determine how his or her estate is divided and to whom it is divided. In a general sense, the probate process is a legal “script” for how a person’s estate should be divided after death; all debts and taxes, for example, must be resolved before beneficiaries can receive any inheritances.
You can’t avoid probate simply by preparing a will.
Preparing a will is a central part of comprehensive estate planning, but one common misconception surrounding wills is that you can avoid probate by preparing a will. Preparing a will, however, simply gives the probate court direction as to how your assets should be allocated after you are gone. The probate process must still be carried out in order to resolve debts and allocate residual property to family members and other beneficiaries.
A valid will does simplify the probate process.
Some people wonder: if you can’t avoid probate by preparing a will, what, then, is the purpose of preparing one? It is important to remember, however, that while you can’t avoid probate by preparing a will, preparing one will help ensure that your assets are distributed according to your wishes following your death. Otherwise, the state essentially has a will for you and will distribute your assets according to local laws. Chances are these laws will not fall in accordance with your personal wishes concerning your assets.
Preparing a will beforehand does not only ensure that your assets will be distributed according to your wishes after you are gone; it also can help save time and money for your loved ones as they navigate the probate process.
