Does A Will Have To Go Through Probate – The death of a loved one is devastating. Just dealing with the pain can be overwhelming, and then there’s the work of figuring out what’s going on with your assets and estate.
Come in Probate is a legal process that helps distribute assets and manage legal issues for anyone who has died. But how does the will work? Can you avoid it? And how can you make the entire probate process less stressful for you and your family?
Does A Will Have To Go Through Probate
Probate is the legal process that takes place after someone dies. It ensures that property and possessions are given to the right people and that any taxes or debts owed are paid in full.
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But the court does not do all this work alone. The probate judge needs someone to take over this job, called a
. There are several types of personal representatives, but the ones you are most likely to deal with (or even become) are the executor and administrator of the estate. An
Is someone appointed by the courts to carry out the probate process if the deceased died without a will.
Probate is necessary whenever someone dies, even if they had a valid will. So, strictly speaking, you can never skip probate entirely. But if there is
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A will, all this is much easier. In fact, a clearly established will (or living trust) can help speed up probate and minimize its impact on your life.
The probate court judge only confirms that the will is genuine and authorizes the executor to carry out the wishes of the deceased. They then keep in touch with the executor to see that everything is done.
If you die without a will, the probate process goes up a notch. First the judge must appoint one
. The court will then get involved in valuing the property, finding creditors and beneficiaries, and deciding on a fair way to distribute the property to the deceased’s heirs.
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We also need to talk about the fact that any property that the deceased owned jointly with another person should not pass through a will. Why not? Because the property would automatically pass to the surviving owner. For example, consider someone who dies and leaves behind a spouse. If you owned a home together, the survivor will not have to take the home through probate to be recognized as the new sole owner.
On the other hand, joint ownership is not always the best option in estate planning, especially for small household items. Are you sure you want to itemize with your spouse every couch, toaster, and book in your house and designate them all as joint property, just to avoid probate? This is pain that no one needs.
An easier route, and the one we recommend, is to let the approval process determine where household items should go. In almost all cases, the obvious owner will end up getting what they deserve.
Some people who don’t really know what probate is are intimidated by the process or think the courts are trying to take over. But the will is not bad, it has to happen. It’s more about organizing who’s in charge, who gets what and how much. So basically probate is about guiding loved ones through a difficult situation and alleviating any confusion about what happens next.
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We hope this helps you see why having a will is so important to making probate go well. When these items are covered in your loved one’s will, everything is simpler because they have written exactly who will get what and the executor can make it happen.
But if there is no will (or if the will is outdated or information is missing), the probate court judge must step in and help the estate administrator decide what to do with the assets. And that means a lot of extra time and energy when you should be focusing on grieving.
The first steps in the probate process may vary slightly depending on whether there is a will. But after the will has been found (or when you realize it doesn’t exist), things work pretty much the same. The personal representative must follow the following steps:
The executor, estate attorney or next of kin must inform the county court of the death and provide them with a copy of the death certificate to start the process.
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The probate court will examine the will to make sure it is properly signed and dated. Once they confirm that it is genuine, they will pronounce the will valid. (If there is no will, you will go straight to step three.)
The court then gives the executor the authority to carry out the will or appoints an estate administrator to do the initial work of the probate process.
Be required to post a probate bond for the estate to ensure that everything is distributed properly according to the will or the court.
The bond is supposed to protect the beneficiaries from any mistakes the personal representative may make during the probate process, either intentionally or by accident. Think of it as an insurance policy to protect the estate so that the beneficiaries get their due.
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The bond could cost a lot of change, but like any direct expense during probate, the estate picks up the tab. And the good news is that in some states, the bond can be waived for a number of reasons, such as if all adult heirs agree to sign a waiver or if the deceased person requested in writing to do so in their will.
The personal representative must find and notify the beneficiaries of the death. They will also need to contact creditors about any outstanding debt that the property has to settle. Finding the beneficiaries will be easier for the executor as they will appear in the will. But both the executor and the administrator of the estate may have to do some work to find creditors. (Trust us, if you can’t find them, they will find you. And that’s a headache
The personal representative will assess the value of everything you owned at the time of death, and may need to bring in a professional appraiser to help. The valuation includes big ticket items like real estate and cars, but should also include small things like personal and household items. With this information, the personal representative will estimate the value of the entire estate.
The personal representative will then use the assets of the estate to pay funeral expenses, taxes owed, medical expenses, and any other unpaid debts. They must be careful, however, because if not done correctly, creditors could follow up with the beneficiaries of outstanding debts! (If you have questions, it’s a good idea to contact probate court or even hire a probate attorney to help you navigate this part of the process.)
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The personal representative must transfer the titles and deeds in the name of the beneficiaries. They will also need to arrange times for beneficiaries to pick up smaller items such as jewelery or household items. Who receives what will be expressed in the will. If there is no will or if information is missing, the personal representative must follow the instructions provided by the probate judge.
If there is a will and no one tries to contest it, the average probate process takes six to nine months. But if there is no will, the process could be much longer. Depending on the complexity of the estate, you could be looking at several years. Yes-
. This is why having a will is so important: it will save your loved ones the stress of a long, drawn-out process.
Another thing to know during probate is that the personal representative must lock up any unused property to keep the assets safe until they can be distributed. And they’ll need to keep up with all the utilities, mortgage payments and other bills as they come in; otherwise, these unpaid bills could create big problems for the beneficiaries.
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The amount of probate costs really depends on the size of the estate, the state you live in, and how much legal work is needed during the probate process. But there are definitely some items that come at a price:
A will should not complicate life, but should make everything easier at a difficult time in life. If you’ve lost a loved one, succession is a steady hand during an unstable time. It helps finalize and distribute someone’s estate, especially if they died without a will.
But that said, not having a will makes probate much more difficult than it needs to be. The best thing you can do for your family is to create your will sooner rather than later. We recommend the RamseyTrusted provider Mama Bear Legal Forms. They will help you express your wishes clearly in advance, setting up the probate process to run as smoothly and efficiently as possible. This means you can save your family from a lot of stress and unwanted drama in the courtroom.
Instead, you’ll have a clear and easy-to-follow will that lets them know how much you love and care about them. And that is a legacy worth leaving.
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