Probate

Probate is the Legal Process of Establishing and Executing a Will

 

Who Needs a Will?

Every adult should have a will. Many Americans put off creating a will because discussing death is not comfortable. Yet, taking care of this is one of the greatest gifts anyone can give their loved ones. After a death, especially an unexpected death, a grieving family often struggles with making decisions and determining how the assets of the deceased person are to be distributed.  A current will eliminates one of the struggles the family otherwise faces.  Even if there is a trust (briefly discussed below), a will is important as there may be assets which are overlooked and not transferred to the trust, or other issues which should and could be addressed by a will.

When you create a will, you legally document your wishes about very important matters:

  • Who will care for any surviving minor children or children with special needs?
  • Who will serve as your personal representative (previously called “executor”), the person responsible for presenting your will to the court and carrying out the instructions in the will?
  • How will assets which are subject to the will, be administered and distributed?

Probate is the court where your will is probated or proven to be truly your wishes. The personal representative you have identified presents your will to the probate court. The judge then will review it and decide whether to accept the will. If it is accepted, the will moves forward in the probate process.

How to Select the Right Personal Representative for You

Because the personal representative is responsible for paying debts, selling assets and managing affairs after someone has died, choosing someone who is trustworthy and capable is vital. The personal representative is responsible for: (1) taking inventory of the deceased person’s belongings and holdings; (2) listing and verifying outstanding debts; (3) paying debts and taxes, including filing of any required tax returns;  and (4) distributing remaining assets to the beneficiaries according to directions in the will.

There are rules and deadlines mandated by the courts that must be followed by the personal representative. Hiring an attorney familiar with probate procedures is extremely important to assist in executing these steps.  The estate assets are used to pay for the attorney’s fees. The more complicated the estate, the more rules and deadlines. An experienced probate attorney can relieve some of the stress around fulfilling the role of personal representative.

There Are Many Advantages to Being Prepared and Avoiding Probate

  1. There are no financial benefits to probate. Because probate is a legal process, there are court and attorney fees associated with probate. These fees are paid out of the estate and will decrease the funds available to the beneficiaries.
  2. Probate is a public process. Probate is a public legal process as the will is filed publicly along with many other documents to settle the estate. Anyone can research and review your will and any other filed documents on the court docket. If there are any issues or conflicts involving your wishes, they will become public knowledge. In some instances your assets are reported in the probate and become part of the public record subject to inspection and review by everyone.
  3. Probate can take months or even years. How long it takes to wrap up the estate is dependent on several factors. There are state mandated minimum time periods which must pass before the probate can be completed.  If there is a contested issue or are contested issues (such as contesting the validity of the will), the process will take additional time. Depending on the complexity of the estate, probate can take years to be completed. This time lapse will delay your beneficiaries receiving their inheritance and your estate being closed. Not surprisingly, the longer the process goes, the higher the fees and costs will be.

 

 

Tucson Estate Planning Attorneys

Proactive estate planning can help avoid probate. A living trust is the primary tool used to assure a privately administrated estate when someone dies. Court costs, legal fees, lengthy estate administration and years-long waits for inheritance distributions may all be avoided with a solid plan built on a living trust. Leaving your legacy with a strong estate plan can be the best last gift you offer your family.

Consult one of our expert attorneys and allow us the opportunity to review your estate and present your best planning options.

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