PROBATE LAW

The probate process involves:

• A court-supervised process that proves the validity of a will
• Cataloging the deceased’s belongings and assigning each a proper value
• The repayment of all personal loans and taxes.
• Transfer of assets as determined by a will or a court order

Many families employ a probate attorney to handle all probate litigation issues mentioned above. However, families can also work with the lawyer who was on retainer before the deceased’s passing. All fees associated with the probate process – specifically the retainer and fees for the attorney – are typically paid out of the deceased’s estate.

Most probates involve an executor named in the will who completes various paperwork such as gathering the necessary documents and reporting to the court to begin and conclude the probate process.

In the absence of a will, or when there is no executor named, a family member appointed by the family may act as the executor. However, the position of an executor requires approval by a judge.

An executor can be a family member or a close relative of the deceased. Typically, a lawyer helps handle all responsibilities and monitors all steps to ensure everything is done correctly.

When there is a will and no contentions, probate happens to be a short process. Then, the probate process is simply a process by which the executor makes sure that the deceased’s property is distributed as specified in the will and all debts are paid.

Why Probate Is Important

Although the probate process – mainly when there is no will- usually is lengthy and costly, it is critically fundamental for the fair distribution of the deceased’s assets. Without probate, heirs don’t get their inheritance.

Not all property must be probated, though. If there is not much property left over, there can be simplified procedures for quickly transferring property to the intended heirs or desired beneficiary. A certain amount of property can usually be distributed without the need for probate. The probate process is specifically not needed when an individual has less than $150,000 gross assets.

If you have fewer assets or have established estate plans to dispose of your possessions after your passing, probate is likely to be a quick and painless process.

How to Avoid Probate

The probate process has two significant drawbacks:

• Often, it prevents the property from being sold for months or years.
• There are legal and court fees that can consume up to 5% or more of the value of an estate, depending on the complexity of the assets.

It is not difficult to avoid probate. The process of transferring property to heirs without going through probate court can be simplified with these methods:

Create a living trust

Living trusts are merely alternatives to a will. A living trust keeps your assets and property in the trust for distribution upon your death. A trustee manages these assets and property for the benefit of your beneficiaries. By creating a trust, you can avoid the probate process in total since you already transferred the property and assets to the trust.

Further, you get to avoid probate costs of wills by using a trust. A significant disadvantage of wills is their cost. The court fees charged to probate them are deducted from the total estate value. As much as 3-10 percent of an estate can go into paying court costs. This money could help pay attorney’s fees and burial costs. With a living trust, you can save on these costs.

Name beneficiaries on your retirement and bank accounts

Payable-on-death accounts (Also known as POD accounts) (bank and retirement accounts) let you list a beneficiary, and the funds are transferred directly to that person at the time of your death without going through probate. Almost all states now allow the same when you register security assets and vehicles. Some also allow death-by-deed transfers for real estate.

Although the concept of naming a beneficiary seems obvious, many people often forget to do it in their investments, retirement plans, and bank accounts. You can save time and money for those you’ll leave behind by leveraging payable-on-death accounts, including life insurance policies, 401K plans, pension plans, and stocks and bonds.

To set up a payable-on-death account, fill out the forms provided by your brokerage firm or bank. Keep in mind, some of these accounts may automatically be part-owned by your spouse if you are married. The fact is that if you complete these forms, you can ensure that the estate proceeds are distributed immediately after death without having to go through probate.

Co-own property

Consider holding your real estate jointly. If you own real estate jointly, you prevent the property from going through probate. Thus, if you jointly purchased your first home with your spouse or significant other, the property will automatically pass to her or him after your death. There is no distinction between married or unmarried people when it comes to jointly held property. If the property is designated as any of the below, it avoids probate.

Joint tenancy with the right of survivorship: Upon the death of one joint tenant, the property automatically goes to the surviving co-owner(s) without the need for probate.

Tenancy by the entirety: Several states do not recognize the joint tenancy method but instead permit title to be held by married couples in “Tenancy by the Entirety.” It is similar to joint tenancy but only legal for married couples.

Community property with the right of survivorship: If you hold property in this way, the surviving spouse automatically owns the asset when one dies.

Probate Lawyer

Executors may well want to consult a probate lawyer to answer questions or assist with a probate administration. Hess-Verdon probate lawyers are available at your hour of need. Deep expertise, professionalism, and competence set us apart from all other lawyers. You can consult us on personal and financial matters, as well as legal concerns during probate.

It is not an obligation on your part to hire the same lawyer that drafted the will. Although the deceased might have retained a lawyer, you are not obligated to choose him/her as executor. If the lawyer still has the original will, he or she must provide it to you.

The majority of probate cases are mostly paperwork and estate dispute resolution. Find a competent lawyer who understands inheritance law. Find an experienced lawyer who understands the dynamics of estate distribution and associated family conflicts. You want a lawyer who is clear about the process, provides detailed answers to your questions, and demonstrates respect.

Make sure you find somebody who:

Is a good communicator: It’s essential the probate attorney you choose can effectively relate to you and your wishes.

Is transparent and supportive: For the best chance of learning what you’re responsible for as an executor and perhaps doing a bit of the work yourself to save money, you want a lawyer who respects and supports you 100%.

When is Probate Required?

Even if there is a valid will, estates may need probate to distribute the assets. Probate is required regardless of whether or not the assets were left to their heirs in a will. However, if a will is present, the probate process may be made easier or more streamlined.

Probate is a necessary legal process that transfers ownership of an asset to a beneficiary where the decedent retains sole ownership of an asset such as a house. Sometimes, estates are forced to probate if there is a debt due and creditor obligations that must be paid off before beneficiaries can claim the assets.

When distributing an estate in the wake of a decedent’s death, the first step is to determine if the decedent’s assets are probate assets. If they are not, then the process will not be necessary.

In addition to assets owned by somebody else or have a named beneficiary, there are also assets held with others. For instance:

• Life insurance policies with a named beneficiary

•  Savings or checking accounts with a payable-on-death designation

• Jointly owned assets such as a home where one owner is still alive

• Living trust assets

These structures provide for someone to inherit the assets after an owner’s death, will or no will. Jointly-owned assets are transferred to the survivor, whereas assets held in a trust pass to the beneficiary.

When an owner of a life insurance policy, a retirement account, a checking account, or another asset dies, the named beneficiary automatically inherits. There may be a need for probate if these accounts do not have a designated beneficiary.

Even for executors of an uncontested will whose provision transfers all assets to the named beneficiaries, probate can still be a lengthy and bothersome process.

Many homeowners, rather than wasting life savings on probate court costs, avoid probate by taking steps to prevent it. Taking a strategic approach to the organization of your assets can help you avoid probate for your heirs. Hess Verdon can help with a probate matter or assist in setting up your estate plan. Call (949) 706-7300 set an appointment.