What Does the Probate Process Entail?
If a deceased person created a last will and testament as part of an estate plan, the last will and testament will have to go through the probate process. The probate process a legal procedure done through a court that authenticates the last will and testament, locates and determines all assets, pays final taxes and bills, and then distributes the remaining portion of the estate to the correct beneficiaries. There are four basic steps to the probate process.
Step 1: File Petition and Give Notice
The first step in the probate process will be the official filing of the petition with the probate court to either admit the will to probate and appoint the executor or, if there is no will, appoint an estate administrator. All of the decedent’s heirs and beneficiaries will be notified that the last will and testament is now in the probate process through an official notice. Typically, a notice is also placed in a newspaper as a matter of public record to attempt to notify any other potential creditors of the decedent.
Step 2: Inventory of Property and Notice to Creditors
The executor will then give a written notice to all of the creditors of the estate. Any creditor that has a valid claim on any assets of the decedent is allowed to do so with the court. A complete inventory will be taken of all the decedent’s property, which can include real property, retirement funds, stocks, bonds, business assets, and more. If there are non-cash assets, the court can hire an independent appraiser to determine value.
Step 3: Payment of Debts
Any debts to creditors, taxes, and estate and funeral expenses must be paid from the estate. There may be a question regarding the validity of some creditor’s claims. If this occurs, a determination will need to be made. A personal representative of the estate is allowed to sell assets to satisfy any of the decedent’s obligations.
Step 4: Legal Title is Transferred
After the waiting period is given to creditors to file any claim, bills are paid, and all financial matters are settled, the court will be petitioned to grant the authority to transfer the remaining assets to the beneficiaries as directed in the last will and testament. If there is no last will and testament, the assets will be transferred according to the state’s intestate succession laws.
How to Avoid Probate
While you may give away all your property to avoid probate, there are some other ways to avoid the probate process. You could possibly use joint ownership with rights of survivorship or tenancy by the entirety for your accounts, which gives legal rights to your spouse when you die. Some accounts will let you use beneficiary designations, such as life insurance or retirement accounts. Finally, using a revocable living trust is an estate planning tool that has many benefits including avoiding probate, privacy, and the ability to make changes during your lifetime.
Contact an Estate Planning Attorney Today
If you are interested in creating an estate plan that will not need to go through probate or are interested in how the probate process will work with your last will and testament, contact the Law Office of Kris Mukherji at (858) 442-5747. We can help you build your estate plan to ensure that your estate is handled properly and according to your wishes.