A death in the family is a tragedy, and there’s no way to truly prepare for it. No matter how inevitable it might have been, death is an element of living we all have trouble with – and getting through such troubling times can take an enormous amount of strength and unity in the family. The last thing a family needs after such moments is to increase their emotional burden with a legal predicament, or courtroom quarrels.
As such, it’s important for families to know the potential burden of an excessive or troubling probate process – and know how best to avoid, or shorten it.
Probate is the legal process by which a court legitimizes the contents of a will, and enforces the distribution of a person’s estate, either as per the will or local state laws. During probate, the decedent’s final bills, taxes and debts are paid, and the value of their estate is estimated and doled out to their heirs and beneficiaries.
The exact way in which probate is fulfilled depends on the state, and the estate. While probate laws are generally similar, there are differences. However, almost all cases of probate follow roughly the same step-by-step process.
It begins through the formal appointment of representation for the estate. Typically, an estate plan helps a person appoint their own representation – but if the judge finds said representation lacking in the capacity to fulfill their duty, they may appoint a more appropriate representative. The person filling this role will be the executor of the estate. Their job is to take care of the administrative tasks of locating and distributing the contents of the estate among the rightful beneficiaries.
Then, probate engages in ensuring that the decedent’s financials are in order. That means paying the bills, paying any outstanding tax, and identifying creditors for them to contribute to any leftover bills. These tasks are all part of an executor’s list of responsibilities.
Finally, the estate is distributed as per the will – or in the absence of a will, the state’s intestate laws will go into effect. Intestate laws determine who gets what in the case of a death without an estate plan. Typically, legal heirs get priority. It’s rather inflexible, and should be your worst-case scenario.
For the most part, probate simply exists to ensure that property finds its way into rightful hands. However, probate takes time – and money. Depending on the size and nature of your estate, it can be an incredibly complex endeavor, and the process can take months (or in some cases years).
Probate expenses include:
- Executor fees.
- Attorney fees.
- Court fees.
- Accounting fees (depending on the size of the estate).
- Appraisal fees (again, depending on the estate).
- Paperwork fees (postage, insurance, storage and shipping/delivery of assets, etc).
Probate is also an opportunity for family disputes regarding inheritance to be settled calmly and within the bounds of the law. Probate is the place for someone to come forward and challenge a will’s legitimacy, either by claiming that it was written under duress, signed without proper or full knowledge of its contents, or that there was some other provable bias at work other than the full will of the decedent.
When Probate Litigation Is Unavoidable
There are ways to avoid probate – but that’s not always an option, if you didn’t have enough time to plan, or if you feel that creating a living trust would have been a bigger financial and emotional hassle than going through the probate process with the estate. That’s why it’s important to plan for going through the probate process as efficiently and effortlessly as possible. Here’s what you’ll want to keep in mind:
Compile an Inventory of Estate Assets
The first thing to do is take stock of all valuable assets under the decedent’s name. From silverware to a collection of antiques or a car, make an inventory of everything that encompasses the estate, and either determine the value yourself if market values are easily accessible, or hire a professional appraiser to value certain rare items.
Then, move the estate to one, easily-accessible place. A warehouse, or a home. Some things can’t be moved, such as lots and houses. Keep all the paperwork and proof of ownership nearby.
Choose a Dependable, Capable Executor
The most important part of the probate process is electing a good executor. You’ll need someone with an attention to detail, a good memory, a certain skill with accounting and management, and the drive needed to successfully catalogue an entire person’s wealth and legacy and distribute it accordingly, without fail.
You can volunteer to be the executor if you feel it’s within your means, and if you don’t somehow prove yourself incapable by some means, the court may approve it. The surviving spouse is typically the first person considered for the role of executor if no one files for one, or if the decedent didn’t request one.
Notify All Parties Involved (Creditors, Beneficiaries, Heirs)
The next line of business is to get everyone on-board in the probate process. Probate isn’t just about legitimizing a will – it’s about executing it. The longer that takes, the longer it’ll all go on – it’s the executor’s job to notify creditors, beneficiaries and heirs.
Retain Experienced Legal Counsel
Probate is a trying time. If you’re the spouse, and have elected to be executor, then dealing with the stress of administrating an estate while mourning the death of your loved one is no easy task – and the pressure of getting it all behind you can be overwhelming. A good probate service can advise you and help you accelerate the process, so you can prioritize mourning and healing.
Choosing a Trusted Probate Attorney
Choosing just any attorney or probate service will only make things more difficult, and put additional costs onto your family without much reason. However, now isn’t exactly the time to spend days and days shopping around. To quickly and assuredly find the people who can help you expedite the probate process, take your time to compare the most suitable services in your area.
The Internet and the American Bar Association are great tools to help you here. Social networks have helped customers empower and embolden themselves to hold services up to higher standards – they’re a great tool for gauging the service quality of any firm in your area. The Bar can help you make sure that you’re not dealing with an unsavory business. And finally, a quick conversation with each of your top picks will help seal the deal, and get you the help you need to put this chapter of your family’s life behind you.