The loss of a loved one comes with many unexpected challenges. Losing a beloved relative or friend can be overwhelming, and the process of handling their affairs in the wake of such a loss only adds to the stress. Many families are eager to tie up loose ends and distribute the assets of the deceased. To do so,a probate may need to occur.
For those not familiar with the term, probate refers to the legal process required to distribute the assets of the deceased. During the probate process, a representative is authorized to pay debts and distribute assets on behalf of the deceased.
Probate isn’t always necessary. If the deceased’s assets were properly funded into a living trust so that he or she died without any assets in their individual name, a trustee can distribute assets accordingly without probate and court involvement. This is the preferred route for many individuals, as the probate process comes with some downsides. Probate is a matter of public record, so if you’re especially private, seeing your family’s affairs publicized can be frustrating. The process can also be lengthy, with many months passing before the court approves the final distribution of assets. Expensive, time-consuming, and potentially public, it’s no wonder probate has earned such a bad rap.
However, for some decedents and their families, probate can be incredibly helpful. If the decedent had a lot of outstanding debts at the time of death, a formal court proceeding with oversight of the personal representative and supervision of all probate proceedings by a judge is a great way to get a final ruling by a judge that all debts have been satisfied. Probate can also be helpful if there is the anticipation of family conflict, especially if they anticipate conflict between heirs. Having a neutral third party overseeing the proceedings and the actions of the appointed personal representative can give family members peace of mind that everything will be conducted in an honest and legal way or if the decedent had significant creditors. Court supervision can be incredibly helpful in such cases.
Understanding the role of probate is critical to the estate planning process. Talk with your loved ones about your hopes for the future. Make plans to ensure your wishes are respected with the help of an estate planning attorney. It’s the best way to protect your family, friends and all you’ve worked towards and avoid Probate.