What is Probate (and Can I Avoid It)?

Probate is a legal process that occurs after someone passes away, designed to ensure that their assets are distributed according to their wishes and applicable laws. Probate is not a necessary step in every estate administration, but many people do not realize it can be avoided. Understanding the probate process can help alleviate concerns and streamline the experience for heirs.

Probate involves validating the deceased’s Last Will and Testament (“Will”) in front of a court, if one exists. The Will appoints an executor or personal representative, and oversees the distribution of assets. The process generally includes:

• Filing the Will: If there is a Will, it must be filed with the probate court in the county where the deceased lived. The court will confirm its validity.
• Appointing an Executor: If the deceased named an Executor in the Will, the court will formally appoint them. If there is no Will, the court will appoint an administrator, typically a close relative.
• Inventory of Assets: The Executor is responsible (usually with help from an attorney) for identifying and cataloging all assets owned by the deceased, including real estate, bank accounts, investments, and personal belongings.
• Paying Debts and Taxes: The Executor must settle any outstanding debts and pay applicable taxes from the estate before distributing assets to beneficiaries.
• Distribution of Assets: Once debts and taxes are settled, the Executor distributes the remaining assets to the beneficiaries as per the instructions in the will or according to state laws if there is no will.

The duration of the probate process varies widely based on several factors, including the complexity of the estate, the number of assets, and the jurisdiction. On average, probate can take anywhere from a few months to over a year. Complications such as disputes among heirs, challenges to the Will, or the need for asset appraisals can further extend this timeline.

As mentioned above, probate can be avoided through a couple of different estate planning strategies. It is important to consult with an attorney to review pros and cons of any of these techniques.

One way to avoid probate is to establish a trust – whether revocable or irrevocable. Assets placed in a trust bypass the probate process allowing a more seamless transfer to beneficiaries. Another route for avoiding probate is joint ownership on an asset. Again, this must be done only after careful consideration and consultation with an attorney as there may be other unintended consequences of joint ownership. Beneficiary designations and outright gifting of assets are other ways of avoiding probate, but may not actually accomplish your overall estate planning goals. 

While it can seem daunting, knowing what to expect during the probate process, and taking proactive steps can help minimize its impact on your heirs.