Are you preparing to settle an estate and have questions about the process? Check out these 4 common probate questions and call our attorneys.
1) What is Probate?
Probate is used by the court to determine the validity of a will, and it causes people excess concern because of its reputation for causing difficulties. In reality, a well-adjusted, friendly family, can probate a will in six days to two weeks, depending on the queue at circuit court.- If, on the other hand, there is a lot of animosity, your will leaves people out, or people are concerned that the person you named will not be fair, it can be problematic.
- People use a variety of techniques to avoid probate, including such things as revocable trusts in which, rather than keep their assets in their own name, they enter into trust agreements. They are the trustee and the beneficiary of the trust while they live. They appoint another trustee – perhaps one of their children – to take over upon their death and distribute the trust’s assets.
- A trust can be challenged, but it’s harder because it doesn’t go before a court. In places where it’s very difficult to work through the court – such as in big cities – these trusts are used for fundamentally different reasons, such as because of conflict.
- Revocable trusts are also used when one owns assets in another state and wants to avoid ancillary proceedings.
2) Why Does a Will Go Into Probate?
- A will is probated to establish its validity because of the various grounds for objections. The court will entertain the objections of individuals who have the right to object through a specific process but, if there are no objections, the will is admitted to probate.
- Once the court determines that the will is valid, the named executor is in charge. Beneficiaries may object to the will itself, or they might object to the executor separately. For example, a Mom may appoint the elder brother and the younger brother may object, saying, “He’ll be terrible. He’s never going to do this correctly. I’m going to get screwed.”
- The grounds for objecting to an executor are very specific, and it’s not easy. You can have a separate proceeding about that on the side. These contests can get so contentious that the court appoints a public administrator to serve as a third party to continue with the administration of the estate while the matter is sorted out.
3) How Long Does the Probate Process Take?
- Time limits are fluid, and the probate of a will can last a long time, especially if there are objections that can draw out the process – even, theoretically, up to a jury trial which, depending on the court’s calendar, could take a year or longer.
- One useful aspect of a will is that the person you name as executor can obtain preliminary letters before the will is admitted to probate and administer the estate, collect the assets, and pay the bills. They cannot distribute assets, but they can deal with the estate.
- Once preliminary letters are established, an estate must remain open for seven months to give creditors time to make claims. During that time, an executor can make distributions, but must be careful to ensure that money is available to cover claims filed later in the process.
4) What is the Difference Between a Probate Asset and a Non-Probate Asset?
- Probate assets are those held in the name of the decedent when he dies, and must be dealt with through the court via a fiduciary executor administrator.
- A non-probate asset, such as a joint bank account, passes via operation of law. When a person dies, the surviving signer on the account owns the account. The most common joint asset is a house that is jointly owned by the husband and wife. If the husband dies, the house belongs to the wife.
- Other categories of non-probate assets include those with beneficiary designations, such as IRAs and insurance policies. When you die, the beneficiary you named receives that money. These assets are not subject to the will. If your will says, “I want my life insurance policy to go to X,” but you’ve named Y in the policy, Y gets it.
- People with non-probate assets should review the names on them periodically because that’s where the asset goes. They need not be consistent with your will, but should be consistent with the rest of your estate plan.
Are you preparing to settle an estate and have questions about the process? After checking out these 4 common probate questions, contact our Buffalo Estate Planning Attorneys to schedule a confidential legal consultation and case evaluation to get started on your claim immediately.
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