Moving From Probate & Property Confusion to Clarity

It is rare to be able to emotionally prepare for someone’s passing – and it is even rarer to truly feel like you are prepared at all when it happens. Most of the time, a person’s death comes as an unexpected shock, no matter how likely it may have seemed – and for the family, it can be a major blow with lasting repercussions.

Even more so when, right afterwards, the family is bombarded with a series of tasks related to the belongings of the deceased, entangled in red tape rather than having the opportunity to mourn and grieve for the death and loss of a loved one.

This can be prevented through smart estate planning, which is composed of a series of tools all Americans have access to, to help them simplify the inheritance process and remove much of the grief and complication associated with dealing with a deceased person’s belongings. Yet in the case of most Americans, estate planning is not something that is taken into consideration. Instead, over half of the country – about 60% - lack a will or any form of estate planning.

If you are faced with the predicament of probate and everything that comes with it right after your loved one has passed away, then it is understandable how confused you must be. If no will is presented, and no alternative estate plans have been established to take care of a person’s property after they pass on, intestate law kicks in. For every state, different rules exist regarding how property is passed on, and what is to be considered by a court when passing property on.

Regardless of what state you are in, however, depending on the amount of assets involved, will or plan-less estates must go through a special probate court to either prove and legitimize the will or oversee and facilitate the distribution of the deceased’s accounts, belongings, and property.

Explaining the Probate Process

Although the circumstances change from case to case, the steps in the probate process remain relatively static. They are:

1. A person files for probate by bringing a copy of the deceased’s death certificate and, if available, their will. Without a will, the probate court will move on to distributing assets based on intestate succession laws.
2. The court appoints an administrator or executor to take care of the task of distributing a person’s belongings. They are given special powers to help with this task.
3. Notices are sent out through the mail and posted in newspapers to notify potential creditors to come and file a claim against the estate if the deceased owes anything.
4. The administrator must take stock of the total value and contents of what the deceased left behind, and finally, distribute it accordingly.

As for how the estate is distributed in intestate, it depends on each state. In California, it has a question of whether the deceased is still married or not.

• If no, then the estate is distributed equally among the next of kin, starting with the decedent’s children. If yes, then all community property goes to the spouse, and separate property is split between the spouse and next of kin.
• If there are no children or other descendants, then the estate goes to the parents.
• If there are no parents, the estate goes to the decedent's siblings.
• If there are no siblings or surviving nieces/nephews, the estate goes to the grandparents.
• From there, the estate either goes to surviving cousins, or any other next of kin.

Appointing the Executor / Administrator

Typically, a qualified next of kin is appointed to be the executor, or administrator for the decedent’s estate – which can come as an unexpected burden to someone still coping with the recent loss of a loved one. Such individuals are often chosen in wills, or in the case of a trust, specific individuals can be appointed to be the successor trustee. The job of an executor can be extremely stressful, as it involves dealing with creditors, keeping a strict inventory, maintaining property until it is passed on or sold, and more.

Executors do not need to be related to the decedent. If no spouse or next of kin exist, then someone else who is seen fit or suitable to the task will be chosen by the court.

Selling Property During Probate

During the probate process, you are usually given the authority by the court to sell property in the estate while you are handling the probate. Some companies and firms specialize in buying homes in probate.

Skipping Probate

If you have read this and are worried about the probate process and what it brings to the table both emotionally and financially for your loved ones once you pass on, there are methods that allow you to summarily skip probate, and greatly simplify the inheritance process and overall costs for all involved parties.

Through a revocable living trust, you can hold all your assets and properties while maintaining control over them and having a greater control over how they should be distributed in the case of your death or permanent incapacitation. Unlike a will, trusts keep all their contents private, and can be used to more delicately and specifically state how each item should be passed on.

A trust is typically a bit more expensive and more complicated to set up than a will, but it can be done quickly with a professional. Arguably the greatest tedium lies in changing the deeds and ownership paperwork from your name over to the trust’s name. Furthermore, adding to or amending a trust is more involved than amending a will.

But if you potentially leave behind a very sizeable estate, a trust can not only save your children money, but speed up the inheritance process tremendously. Be sure to contact a legal professional and discuss your estate planning options or revisit your current plan.