If you're like most people, you probably already know that probate refers to the process of debts and assets left behind following the death of a loved one. You may also already be aware that even simple wills can involve somewhat lengthy probate processes. However, unless you have specifically dealt with probate court before, you may be in for several surprises. Following are four things that you need to know about probate.
All Aspects of Probate Are Public
Because probate goes through the public courts, all of the associated court filings are a matter of public record. This is a cause of concern for some families, particularly if controversies exist concerning how the contents of the will were distributed. Even if that isn't the case, many families simply prefer to keep these matters as private as possible. However, depending on the jurisdiction, you may be able to petition the court for a waiver on making the list of assets and debts public, so be sure to bring this up with your estates and trusts attorney if you'd rather your loved one's will not become a matter of public record.
A living trust, on the other hand, ensures the family's privacy because it's a private document that doesn't go through probate court.
Probate Doesn't Erase Debts and Taxes
Many people are under the impression that debts and taxes are forgiven upon someone's death, but this isn't the case at all. Although it's true that these obligations can't be passed on to the person's descendants, any debts and taxes owed by the deceased must be paid from the assets of the estate, and this is a big part of the probate process. If the person doesn't leave enough cash to settle debts and pay taxes, the court may require that any nonliquid assets such as real estate, automobiles, and valuable personal effects be sold in order to meet these obligations.
The Executor Can't Immediately Distribute Inheritance
One of the most common misunderstandings about inheritance under the terms of a standard will is that the executor has the power to begin the immediate distribution of assets to heirs. However, except for the case of incidental personal items of no value, this isn't the case — and even then, most executors err on the side of caution and wait until the probate process is finished even for these. Because executors are often family members, their inability to legally distribute assets immediately after the death of the loved one sometimes causes friction.
The first thing the executor needs to do is to petition the court to open the probate process. After this occurs, the executor will need to officially notify any and all interested parties, such as those named in the will and the deceased's creditors, of the person's death. If no address can be found, they must publish a notice in the local newspaper. Depending on the state, most probate courts require a waiting period of between 30 to 90 days in order to allow for anyone who may wish to contest the will to begin the process of making their case.
Probate Laws Are State-Specific
Because probate laws vary greatly by state, it's essential not to listen to hearsay on the subject — your relative or friend who just went through the probate process in another state, for instance, may want to offer well-meaning advice, but chances are high that it won't apply to your situation. Probate law is also subject to change on the state level every two years, so it's important to seek out the services of an experienced estate and trust attorney who makes a point of keeping current on any changes in the law.Share