What Is Probate?

Probate  is the court process by which a Last Will and Testament is proved valid or invalid. Its name is derived from a Latin root word that means “the truth.”  It is also the legal process whereby assets of a decedent are administered.  “Administration” means finding, collecting, and distributing assets in kind or after liquidation and payment of the decedent’s debts and the administrative expenses incurred performing those acts.  A probate case is also the process whereby the distribute-es of the decedent’s assets are determined and the creditor claims are examined.

Probate is not required in every case and the kind of assets owned by a decedent and how those assets are titled will determine if a court proceeding is necessary or not.  I am best known for creating estate plans using trusts that help families avoid estate taxes and probate, but my staff and I are also experienced at helping families determine if a probate case is necessary and to help families transition assets with as little anxiety and expense as possible.

Contrary to popular belief, the value of the assets is not the primary factor in determining if a probate case is necessary.  Some very small estates must be probated and many high value estates avoid probate.  Probate is a different issue than whether an estate tax return is required.  We will help you make an initial determination as to both issues.

The key factor for probate is whether or not the decedent would have had to sign a legal document to transfer the asset.  Common assets falling into this category are houses, bank accounts, vehicles, and business interests for which no alternate method of transfer has been pre-arranged.  We can assist you in pre-arranging your affairs to avoid probate and also efficiently transfer the assets regardless of whether pre-arrangements were made or not.

Life insurance proceeds or retirement plan benefits left to minors, survivor-ship interests in joint tenancy property that have not been documented, oil and gas interests, interests in partnerships or businesses are just a few of the problems you may need help resolving.  Arizona property owned by a decedent in another state is another common problem.

Some issues can be resolved by recording or filing a death certificate in the proper place, small estate affidavits can be used to good effects under some circumstances, and in some cases a probate case in one or more jurisdictions may be required.  This much is true, choosing the wrong process will delay the resolution and increase the eventual cost.

Even if all the decedent’s assets were properly owned by the living trust, there is still work to be completed before the beneficiary can enjoy the use of the asset.

To reduce the anxiety and expense of transferring assets after the death of a loved one, it is best to begin with the end in mind, which means understanding what needs to be done, having a good process in place for doing it, and having competent advisors assisting you.

I want to be that advisor for you.  Contact us to find out how we can work together.

2017-12-01T16:26:23+00:00 By |Probate, Uncategorized|Comments Off on What Is Probate?

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