Most of us have probably had a sunburn. Those of us with easily-sunburned skin know the stinging pain that comes along with it. Though our beach day might have been fun, the aftermath was not quite so nice. However, sunburns aren’t the only thing that can cause a major sting. Think of probate court as the judicial equivalent of a sunburn: annoying, uncomfortable, and definitely not what you want to be dealing with. Here’s a brief overview of what probate is, how you get there, and how you can avoid it.
What’s Probate?
Probate court is a court that deals with the division of your assets and repayment of your debts after you die. It handles validation of a will, identifying and taking an inventory of the deceased person’s property, and dividing said property up according to state law (after debt repayment, of course). State by state, the process of probate court varies, but here are some elements of the process that you need to know, and they don’t vary a whole lot across-the-board.
First, you should know about the executor. This person can be named in your will. Or, a judge can appoint him or her if you die intestate or fail to name the person. The executor has a lot to handle. He or she validates your will, presents a judge with an inventory of property and debts, and gives a list of who should inherit the property and assets that you’ll have left after the debts are wiped out.
The executor notifies your creditors and family members of your death so that people can make requests. The executor has to decide what to do if you come up short. If you’ve granted cash gifts that you don’t have when you die, the executor might decide to sell some of your property in order to make ends meet. This is just one example of the way in which the executor will work with the court to settle up your property. This process usually takes a year or two, but it can take even more, depending on your circumstance and the court’s schedule. Overall, probate is a long, arduous ordeal.
How Do I Wind Up There?
If you die intestate (which means being deceased without a will), you’ll end up in probate. People might be under the impression that you can avoid probate if you have a last will and testament, but that actually isn’t true. The executor still has to go to court and validate the will. A will must be authenticated. Otherwise, it isn’t going to hold up in court. Lawyers will assist in the validation process, as it varies based on state law.
Having an estate plan that doesn’t address important documents recommended if you want to avoid probate is a way that you wind up there. Especially when it comes to the appointment of your executor, your family will not like the process at all. If the judge appoints someone you didn’t intend to manage your affairs, things will go likely downhill rapidly.
Yikes! How Can I Avoid That?
Avoiding probate court involves some legal footwork, such as establishing a living trust. This legal tool is a three-party fiduciary relationship that is effective immediately. You, the donor, give nominal title to the trustee, who then confers the title to your beneficiary when you designate them to do so (i.e. after you die, usually). Joint tenancy arrangements are also not subject to probate, depending on state law. Your estate planning attorney will help you work out ways to keep your family out of probate.
When it comes to this judicial sunburn, you want to take all the necessary precautions. Consider a living trust (as well as smart estate planning overall) your equivalent of SPF 50 sunscreen. Good estate planning and consulting with an estate planner will save your family time, energy, and stress. A sunburn might last just a week or so, but the sting of probate lasts way, way longer.