Do You Have To Do Probate When Someone Dies?
Losing a loved one is never easy, and the last thing you may want to think about during this difficult time is going through the legal process of probate. You have likely heard people use the word probate in connection with an estate.
The word seems intimidating because it describes a legal process people must follow before closing the estate. In some cases, probate is a necessity, but it can be unpleasant for families that are already grieving the loss of a loved one.
They must handle details properly the first time, or there can be delays in settling the estate.
Families often want to know whether they have to go through probate, and the answer depends on your situation and any arrangements you may have made beforehand.
You can minimize the amount of assets that must go through the probate process or avoid it altogether. However, you will need the help of an estate planning attorney to make arrangements beforehand. There can be a time when it is too late to do anything about an estate plan, and then you must go through probate.
If you have to deal with the process, seek the help of a Seattle probate attorney to ensure that things go as smoothly as possible.
A skilled attorney specializing in probate law can provide you with valuable guidance and experience during this challenging time. They can explain the necessary steps, help gather the required documentation, and handle the paperwork and legal formalities on your behalf.
What Is the Probate Process?
Probate is the legal process that validates a deceased person’s will and distributes their assets to their beneficiaries. While the probate process can seem daunting, not every estate requires it. The need for probate depends on several factors, including the value of the deceased person’s assets and whether or not they had a valid will.
Probate can be an archaic and complex legal process. You have often heard horror stories about it from people who have ended up in litigation or had to complete detailed paperwork in a thorough and time-consuming manner.
Probate can take many months or even longer if there is potential litigation between beneficiaries or against personal representation. This process is the last thing that you will want to deal with when you are coming to terms with the loss of your loved one.
Which Assets Must Go Through Probate?
For certain assets, it is a legal requirement that the estate must go through probate before the title can pass to your loved one.
The following assets must go through probate before family members can distribute them:
- Assets through a title, such as your home or car
- Personal property
- Family heirlooms, such as jewelry
- Land
If someone else also holds the asset, the title passes to them when you die. For example, if you own property in joint tenancy with your spouse, they will automatically receive it when you pass away. Probate is for when you are single or the last one of the married couple to pass away.
How the Probate Process Works for Families
Probate involves a lengthy process, and the first step is appointing a personal representative.
If the deceased person had a will, they have named a personal representative. This person will ensure the delivery of the deceased person’s final wishes and adequately address their debts and taxes.
When a deceased person’s will does not name a personal representative, the court will appoint one. They will select someone to act as the personal representative, often a family member or close acquaintance.
The personal representative will then proceed to manage the estate. If the deceased person owes creditors money, the creditors will receive notice of the probate proceedings so they can file their claims against the estate.
The personal representative will review the claims against the estate before they get paid and may also have the power to sell the estate’s property. Their fiduciary duty to the beneficiaries will bind them.
In addition, interested parties may challenge the will if they believe there are problems. Sometimes, a party who does not receive what they were expecting may try to contest the will.
They can allege that the testator did not have the capacity to make the will and may also argue that someone else had an undue influence on the deceased person. Then, there can be a tumultuous and bitter process that can permanently rupture family relationships.
You Can Avoid Probate in Some Circumstances
The good news is that you only need to go through the probate process under specific circumstances. Not every deceased person’s assets must go through probate.
In fact, you can exclude many assets from the process altogether and transfer others after death to the named beneficiaries. The account holder may have designated more than one beneficiary to receive a portion of the account. They can initiate these transfers once the company holding the account receives valid notice of the holder’s death.
Transfer on death (TOD) accounts may include:
- Bank accounts
- Investment accounts
- Retirement accounts
- Life insurance proceeds
TOD accounts will supersede the terms of any will that the deceased person has. These accounts will take assets from the estate and distribute them without probate. The account owner has the right to determine who gets what assets and what percentage they may receive, and the account’s custodian will distribute the account per instructions.
However, TOD accounts are more complex than they seem. If the estate is in debt, they may still be subject to claims from creditors. In addition, these assets may not go to minors who cannot control investment accounts when they are under 18.
Nonetheless, you should periodically review your beneficiary designations to ensure they have the right people. If your life changes, you should always review all relevant parts of your estate plan because they may need updating. An estate planning attorney can help you undertake this review and make any necessary changes to your plan.
Trusts Can Keep Some or All of Your Assets Out of Probate
In addition, you can also be proactive and keep certain assets from going through probate by creating one of several types of trusts. You will establish a trust by executing a trust document and selecting a trustee. You will then move assets into the trust, where the trustee will manage them.
Revocable trusts have several benefits, namely that you can control the disposition of your assets and continue to manage them while you are alive (you can be your own trustee). However, revocable trusts do not give your assets the maximum possible protection because you still have indicia of ownership. Thus, you cannot use a revocable trust to shield your assets when you need long-term care in the future, but you can use revocable trusts as part of your long-term estate plan.
An irrevocable trust also lets you keep your assets out of the probate process. You will completely relinquish control of the assets, and the trustee will make decisions regarding the assets.
That you no longer have a say in managing these assets means that you no longer functionally own them. Thus, irrevocable trusts help you avoid claims of potential creditors (such as judgment creditors). The fact that you have transferred the assets into the trust also means that you may not need probate to transfer the titles.
Smaller Estates Can Minimize the Probate Procedures
In addition, there are also some exceptions to probate based on the size of the estate. Each state has its own laws that allow you to avoid many of the complexities of the probate process, depending on the size of the estate.
If the estate is below a certain threshold, you can avail yourself of simplified procedures. You will still need to go through some probate processes, but they will not be as extensive as the complete probate you fear, and the exact amount depends on the laws of the state where you live.
There is still the potential for some issues during the process, and you should still consider getting help from a probate attorney regardless of the size of the estate. However, you may finish with probate in less time and with less hassle.
You Can Plan for Probate Well in Advance
The time to worry about probate is many years before your family may need to go through the process because the last thing you want is for them to deal with probate without a plan and a blueprint.
You may determine that you wish to bequeath your assets to your family using a will and probate. If that is your decision, you should ensure your family is ready for that now. You should have a valid will that appoints a personal representative and specifies your choices for who will receive your property when you pass away.
Alternatively, you can use an estate planning attorney now to avoid probate in the future. An estate planning lawyer can work with you on several trusts or solutions to ensure your property passes to your family as smoothly as possible.
You are investing now to make life easier for your loved ones, and it is best to speak with an estate planning attorney to know about the future and what your family may face when you are no longer here.
An estate planning lawyer can work with you on a comprehensive solution to minimize the burden on your family when they are already going through a difficult time.
If you find yourself in probate, an attorney can handle the work, dealing with any challenges and making life easier. The presence of a probate attorney can help avert potential issues before they even occur.
A Probate Lawyer Can Help You Deal with the Process
Navigating probate can be complex, with numerous legal documents, deadlines, and court filings. Even if you must go through the probate process, you do not have to do it alone.
An experienced real estate lawyer in Seattle can handle all the details for you, reducing your stress and burden during a difficult time. If you are a personal representative and have to manage the estate and deal with probate, you can rely on the help of a probate attorney to get you through the process.
When you hire a probate attorney, they can do the following for you and your family:
- They can correctly prepare all the legal documents that you need to file with the court.
- They can review the estate’s assets to help determine the potential tax obligations.
- They can advise the personal representative when they have any legal questions about situations that arise.
- They can represent individual family members in disputes about the will or the decisions that the personal representative makes.
- They can help manage the estate’s finances.
- They can deal with the creditors and negotiate any potential disputes.
A probate attorney can even serve as the estate executor to ease your family’s burden. Spending money on a probate lawyer can be an investment for your family and their peace of mind. It is a small amount to pay to help save you from problems that can cloud your present and future.
If you have yet to speak with a probate lawyer, consider having a conversation to learn what they can do for you.
Having an attorney by your side during probate also provides peace of mind, knowing you have a knowledgeable advocate looking out for your best interests. They can navigate potential disputes, ensure you meet all legal requirements, and protect your rights throughout the process.
In conclusion, while you might not always need probate after someone dies, consult an attorney to determine the necessary steps for your situation.
An attorney can provide you with the guidance and support you need during this challenging time, making the probate process as smooth and efficient as possible.
