There are a number of misconceptions about estate planning. For instance, many people think you need to be ultra-wealthy to create an estate plan, or that they’re only relevant to parents with young kids and senior citizens. In reality, an estate plan covers a variety of different scenarios. One of the main ways it helps to protect you and your family is by avoiding the probate process. Probate is the legal process by which a will is validated. In the case where someone has no will, it’s the legal process of settling a person’s affairs and determining who will inherit someone's estate.
How probate works
The process, and when it’s required, varies by state. It involves several steps, including getting a death certificate; identifying an executor or administrator for the estate; identifying assets; paying expenses like debt or taxes; and notifying or paying beneficiaries. If there’s a will, the judge also validates the will. (For a will to be valid, it usually has to have witnesses. Sometimes, the witnesses must appear at probate, and sometimes they can sign an affidavit at the same time the will is signed instead.)
When there’s a will in place, it usually identifies the executor, assets, and beneficiaries, as well as any outstanding debts and obligations. This can make the probate process much easier. However, it’s also possible that someone may contest the will. A child may object if a new spouse is named as executor, for example.
The executor’s job
How involved the job of an executor is depends on the estate. While the executor may be named in the will, and be someone related to the deceased, an executor may also be a professional or appointed by the court. It’s an executor’s job to take stock of the decedent’s assets — including any that aren’t listed or disclosed in the will. In most cases, this is a simple process, particularly if the deceased individual had an estate plan in place.
The executor is also responsible for taking control of any assets during the probate process, in order to protect those assets, especially if there ends up being any kind of dispute. The executor may be responsible for hiring an appraiser to look at the “death value” of certain assets, though sometimes the court will appoint an appraiser independent of the executor. In addition to gathering assets, the executor must also notify any creditors that a death has occurred. This includes the bank (if the deceased had a mortgage), but it can also include publishing an obituary so that any unknown creditors have an opportunity to come forward.
Finally, the executor must resolve the estate. This includes paying off debts (and challenging any they view as unfair) and divvying up assets to the beneficiaries. If the will specifies assets go to minors, the executor may be instructed to set up a trust for those assets.
Who pays for probate?
As you can imagine, the probate process can take time to complete, and may require lawyers, court appearances, or both. If this occurs, the legal fees are generally paid from the estate.
In many cases, it’s not uncommon for the process to take up to a year. In some cases, immediate family members who are beneficiaries can ask the court to release funds during the probate period. (For instance, you might ask a probate judge to be reimbursed for funeral expenses before the estate is settled.)
If there is no valid will (either because the decedent did not prepare one, or because the court rules the will invalid), the estate is said to be “intestate.” In this case, any assets left over after debts are paid go to the closest living relative. Who that relative is may vary depending on state law and personal circumstances. One of the most famous examples of this happening recently is when the musician Prince passed away back in 2016. Can you imagine what a mess it would've been trying to sort out his assets and estate!
While having a will can facilitate probate, it doesn’t get you out of the process. If you want to avoid the probate process and protect your financial details from becoming a part of the public record, consider creating an estate plan that includes a trust. There will still be details to take care of to settle your affairs, but those will fall to whomever you named trustee. Final Thoughts
When it comes to transitioning the estate of a loved one that's passed away, the last thing you want to have to deal with are more government agencies, regulations and rules, all which only end up costing you time and money. So if you or a loved one you know doesn't have a current estate plan that includes a will and trust, your estate is at risk of having to go through the probate process. Our team can help you understand what options are best for you and your family, and get a comprehensive estate plan in place to protect your estate for future generations. To learn more schedule a call with our team today!
Mike Bink, AAMS®, CCFS®
Mike is the founder & president of Equivest Financial Advisors. He is a husband, father of 3, and a fiduciary advisor who is passionate about helping his clients take control of their retirement and reach their financial goals. Learn more about Mike.