Estate planning can be complicated, depending on the size of the estate and the various conditions under which it should be distributed. Often people worry about having an estate go through probate. There are good reasons to be concerned about that. Here’s what you need to know about what happens in probate and when it’s required in the U.S.
What Is Probate?
Probate is a legal process through which a person’s estate is distributed to the heirs. When the testator (person who had a Will drawn up to handle their estate) had a Will in place and named an executor to oversee carrying it out, the Will should be filed in probate, which will oversee the work the executor does and declare the Will completed when all debts are paid and assets distributed.
If someone dies without a Will or any form of estate planning (known as dying intestate), probate becomes the mechanism to distribute the estate (if there is one). That includes assigning guardianship of any minor children. Any assets will go to the closest living family members when someone dies intestate. If there are none, the assets usually go to the state. If the asset owner wants to ensure those assets don’t go to the state, they must set up estate plans.
In the U.S., a Will must be registered with and go through probate. If someone dies intestate and has assets, those assets must also go through probate.
What Are the Pros and Cons of Going Through Probate?
There are pros and cons to going through probate, and sometimes an aspect of probate could be seen as either a pro or a con, depending on the specifics of each estate.
- When someone dies intestate, probate will try to distribute the assets as equitably as possible among the remaining family members. It’s a legal process that can help prevent family members from disagreements that could drag estate settlement out over time.
- It’s a legal process that ensures the decedent’s wishes are followed or, in the case of someone dying intestate, it provides a trustworthy process to distribute the estate.
- Probate ensures any outstanding debts or taxes are paid before the estate is distributed, meaning the heirs won’t have those financial burdens ahead of them.
- The information in the Will becomes public knowledge. There are circumstances in which the testator wants the details of their estate to be known publicly (for example, when there are family disagreements and the testator wants to be clear why certain assets were distributed as they were).
- When someone dies with a Will that specifies guardianship of minor children, probate will ensure the guardianship is awarded according to the wishes in the will. Without a Will, probate will determine guardianship, which may still be a better outcome than leaving it up to family members.
- Probate takes time and money. Going through probate can take time, even for a simple estate, and the legal costs could come from the estate, meaning reduced assets for the beneficiaries.
- Making a Will public can be a positive, as noted above, but it can also be a negative. Having a Will become public can release family secrets that the testator would have preferred to remain private.
- Probate can be stressful, especially if inheritors disagree about the outcomes. Those disagreements can delay the settling of the estate.
Are There Options to Avoid Going Through Probate?
The estate planning toolkit has many items beyond Wills. Depending on the size and complexity of the estate, it may be possible to avoid going through probate by using some of the other tools that are available.
However, one important exception exists: Guardianship of minor children. The only way to legally assign guardianship is through a Will. That Will would need to go to probate to have the guardianship legally established. Probate would be required to appoint a guardian if no guardian is named.
Creating a trust is one crucial estate planning tool that can allow someone to bypass probate. There are different types of trusts, but in general, a trust contains the assets of the estate and directly distributes them to the beneficiaries rather than going through probate. Because every estate is unique, working with an experienced estate planning attorney is vital to determine if a trust will work for you.
Another possibility for married couples is community property with rights of survivorship. This is a legal agreement by which both parties in the couple agree that their property is fully jointly owned and that when one spouse dies, the other spouse automatically becomes the sole owner of the assets. There are some requirements for this in California, such as the couple living in California and being married at the time the property is acquired. Once a community property agreement is signed, the property can’t revert to being owned by only one spouse without the agreement of both spouses.
What Should I Do if I Need to Begin Estate Planning?
Call Cava & Faulkner at 916-685-1225 for a free consultation. Protecting your assets and ensuring they’re distributed how you want them to be is important to you. Our team of experienced, knowledgeable estate planning lawyers will help you identify everything that’s part of your estate and determine the best way to protect it with one of the many tools in the estate planning toolkit. If you’re interested in avoiding probate, we can guide you through choosing a plan that will allow your inheritors to do that as much as possible.