Is Probate Necessary?

Posted on: 19 January 2017

If you have decided that it's time to do some estate planning, you will likely encounter the phrase "avoiding probate" in your research. While there is much you can do to keep some of your property out of the probate process, it is not very likely that you can avoid it entirely. Read on to learn more about why probate is still necessary, regardless of how adept you are at estate planning.

Last Will and Testament

Most people naturally connect wills and probate, but whether or not you actually have a will is not related to the question of probate. If you have a will, it must be probated, and there is no avoiding it. If you do not have will, you may still need to probate the estate, since other means of handling debt and property are seldom encompassing enough to satisfy the legal requirements of dying intestate (without a will).

Dealing With Debts and Creditors

It's very likely that when you pass away, you will owe money to someone. Any creditors with money owed have a right to be informed of the passing and to come forward and assert their claim on the estate. Many times this process is accomplished by running an advertisement in a local paper for a specified period of time.

Additionally, an executor for the estate will either be appointed through the will or by the probate court itself if no will exists. The executor (or personal representative) is tasked with ensuring that bills of the estate are paid, particularly taxes owed. Not all bills should be paid during probate, some should wait until after probate, so consulting with the estate attorney is vital before proceeding.

Not Included in Probate

It should be noted that there are several methods to reduce probate, or to at least reduce the amount of property that gets "held up" in the probate process. Probate does take some time to wind it's way through the local county system, but using a TOD (transfer on death) or a POD (payable on death) designation on assets like bank accounts and investment accounts can mean an automatic stop sign for inclusion in the probate process. That means those designated funds can go directly to the named "beneficiary" with no need to wait for probate to be over. Other ways to keep property out of probate include trusts, special deeds and life insurance.

Speak to an estate planning attorney, such as Valentine & Valentine PC, for more information.