Probate court is a court that deals exclusively with the assets and liabilities of the estate of one who has died.
A judge oversees the probate process and ensures all creditors are paid, then ensures assets are distributed by the estate plan or the statute.
An estate goes through probate even if there is a last will. It is a common misunderstanding that having a will means your estate does not go through probate. All estates pass through probate unless the assets are secured in a trust, which is another topic entirely.
However, the process for the estate completing probate court differs depending on whether there is a valid will, will contest, or no will.
Probate Court with a Valid Will
When an individual dies with a last will, their estate goes through probate.
The will indicates a party responsible for the administration of the estate, known as the executor. This person gathers assets, notifies beneficiaries and creditors, and follows the strict procedures of the court.
During this process, several steps will complete before assets are given to beneficiaries:
- The court validates the will.
- The executor gathers all assets, collects information regarding liabilities, and notifies proper parties
- The executor files a final tax return and pays all estate taxes applicable.
- Assets are then transferred into the names of the beneficiaries.
Probate Court with a Contested Will
A contested will is one that has one or more parties refuting the validity of the will. The party challenging the will does not have to be a beneficiary, either.
Some common reasons a will might be challenged in probate court include:
- Testamentary Capacity – The person signing the will must be at least 18 years and in stable mental capacity. If he or she does not mentally understand the document or consequences of signing such, they are not in the right capacity; therefore, the will might be invalid.
- Fraud or Forgery Claims – A will challenge might occur if the person was vulnerable, forced to sign under undue influence, or the will itself is a forgery.
- A More Updated Will Exists – If the will presented to the probate court judge is outdated and another will is updated, that updated will gives heirs grounds to contest the existing will.
The court will assess evidence regarding the will contest, and determine if the will is valid or not. Typically, anyone looking to challenge a will should seek immediately legal counsel. Will contests are highly complicated and an attorney knows the proper procedure and requirements to challenge a will.
Probate Court without a Will
When a person dies without a will, their estate goes through probate. However, the process might feel more haphazard to loved ones, because there are no directions left for them to follow.
There is one concern that many do not realize when they die without a will: the state determines how his or her assets are handled. Therefore, the courts will distribute assets based on the statute. In some cases, this means that deceased’s intended heirs receive their inheritance. In other cases, individuals the deceased would not have left inheritances to receives them.
Typically, the law follows a classification of beneficiaries, starting with the spouse, and going from children to siblings to parents, and so forth.
This refers to the law of intestate succession, which means the law determines how your estate is handled when you fail to state otherwise.
Should You Avoid Probate?
Many people wish to avoid the process of probate. Probate can be lengthy, so some want to give their loved ones’ access to inheritances faster and without courts getting involved.
Restructuring property and holding assets in a living trust is usually the solution to probate court. However, federal taxes, state taxes, and gifts must be considered when creating a living trust.
Speak with an Estate Planning Attorney to Protect Your Loved Ones
Estate planning is complicated. You want to make the process easy for your loved ones, leave them a sizeable inheritance, and let them grieve without dealing with court appointments. However, to decide what is best for your estate and loved ones, you must first consult with an estate planning attorney.
Let the lawyers at Hames, Anderson, Whitlow & O’Leary help you with your estate plan. We will look at ways to avoid probate court, help with tax burdens, and more.
Schedule your consultation now at 509-586-7797 or request information about estate planning through our online contact form.