Typically, people begin Estate Planning with the intention of avoiding Probate. Probate has been given a bad reputation, but there is nothing inherently “bad” about it at all.
Probate protects a person’s rights and wishes in the event that they pass intestate, or without a Will or Trust. With Probates, a judge determines the distribution of the deceased’s assets in accordance with state law.
What Happens During the Probate Process?
The legal procedures for a Probate can differ drastically depending on the state, judge, and the size of the estate.
In any case, an executor (in Florida we call it a Personal Representative) will be chosen to carry out several steps during the Probate. The executor is typically a spouse, parent, child, or close relative.
Often, the executor is assisted by an attorney, since most executors are family members with no legal training to properly carry out each step of the Probate process.
During the Probate process, the executor is generally responsible for:
- Appearing in court with an original copy of the Will (if there is one) and ask the court to open a Probate.
- Being formally appointed by the judge to the executor of the Probate.
- Purchasing a bond (if required by the judge or state).
- Having several copies of the death certificate for administrative purposes (i.e. filing final tax returns, closing accounts, etc.)
- Finding and make an inventory of all assets owned by the deceased
- Opening a new checking account to place the deceased’s assets to handle all payments and distribution of assets.
- Notifying and paying all creditors and providing each with a death certificate.
- Publish a notice to creditors in the local newspaper as proof for all unknown creditors.
- Filing a final federal income tax for the deceased and an estate tax return.
- Giving a full, documented report of all transactions made in behalf of the decedent to the judge.
- Distributing all remaining assets and property between the beneficiaries, if any.
- Closing the estate.
So Why Does Probate Have a Bad Reputation?
The negative connotation associated with Probate is due to the fact that it is a tedious, time-consuming, and sometimes costly process that can be avoided with proper
planning.
In addition, Probates become public record, and most families would rather their personal affairs to be private.
A simple, clear-cut Probate, for example, can take anywhere from six months to a year to work through the system. Those who are beneficiaries may have to wait six months or longer to receive their inheritance.
While the process may be long and resource-consuming, sometimes a Probate is necessary and even the best choice in the event that a loved one passes intestate.
