Probate is simply the legal procedure your estate goes through after you die. Probate is always easier if you leave a Will that clearly defines your wishes.

In basic terms, probate is simply the legal procedure your estate goes through after you die. During this legal proceeding, a court will start the process of distributing your estate to the proper heirs.

Probate is always easier if you have a Will that clearly defines your wishes. This document helps most by naming your beneficiaries and a Personal Representative. A Personal Representative (or PR) is the person charged with overseeing your final wishes. Creating a Will makes a difficult life event a little easier on your loved ones.

It’s important to understand that your Will still must go through probate, but it’s so much simpler when you have planned ahead. During probate, a court will first authenticate your Will, and then authorize your OR to pay all debts and taxes and distribute your remaining property accordingly, per the instructions you leave.

WHAT IS PROBATE? Probate is a court-supervised proceeding that authenticates your Will (if you have one) and approves your named PR so they can distribute your property and belongings. During the probate process, all your assets must be located and assessed for total value. Once that is done, taxes and debts are paid and the remaining value of the estate is distributed.

In cases where there is no Will (meaning you died "intestate"), this process obviously becomes more complicated. Because there is no documentation stating your final wishes, it is up to the courts to handle proceedings and make all decisions for you.

WHEN IS PROBATE NECESSARY? Unless you properly plan, your estate will go through the probate process. That said, the process is greatly simplified, or potentially even totally avoided, when you have a solid estate plan in place. The more planning you do now, the easier it will be on your loved ones after you pass. One way to lessen the burden and headache of probate, or even avoid it altogether, is by creating a Revocable Living Trust. Any assets you place into your Revocable Living Trust will bypass probate.

Think about probate as a supervised process that ensures the proper beneficiaries receive the appropriate titles and assets from your estate. In cases where no Will or Revocable Living Trust is present, it is the court’s job to appoint someone to represent your estate. Some assets and property in an estate will always go through probate, while others (like those in a Trust) will not.

WHAT HAS TO GO THROUGH PROBATE? If you do not have a Will, all "non-probate assets" you you own will go through probate. This is basically anything not held in joint tenancy with right of survivorship or anything that does not have a beneficiary designation.

WHAT DOES NOT HAVE TO GO THROUGH PROBATE? Certain assets and property will not go through probate. By properly planning, you can help avoid probate for any of the following.

* Items that have a Beneficiary designation: Naming a beneficiary on an asset means you can avoid probate. For example, life insurance policies, IRAs, etc. have named beneficiaries, so proceeds go directly to them without having to go through probate.

* Items placed inside a Living Trust: Because a Trust owns the items inside it, when you die, anything in your Trust can go to your beneficiaries as specified by the Trust, thus avoiding the probate process.

* POD (payable on death) or TOD (transfer on death) items: When you title property and assets such as bank accounts, real estate, retirement accounts, stocks and vehicles with “POD” and “TOD,” you can bypass probate and pay or transfer items directly to your named beneficiary.

* Jointly titled property: Property titled jointly with rights of survivorship will automatically go to the surviving joint owner after you die. There is no need for the property to go through probate in this case.

WHAT IS THE PROBATE PROCESS? How the process of probate plays out in court largely depends on whether or not you have a Will. The biggest difference is that when no Will is present, your state's laws of intestacy will determine who receives your net estate.

1. Death Certificate. Obtain a copy of the decedent's death certificate from the county Health Department.

2. Have the Will Validated. The Will must be authenticated by the court to ensure it was properly signed and dated in accordance with the law. Once this is done, the Will is considered valid.

3. Select Someone to Conduct Probate. In cases where there's a Will, a judge formally appoints the person named as PR (only in very rare cases would the court overturn your choice). The PR then oversees the process and settles your estate. If there is no Will, the court will appoint a PR. State law sets forth the priority of people entitled to serve as PR

4. Post a Bond. Posting a bond protects beneficiaries against potential errors a PR might make during the probate process. Bonds may be quite costly, but your estate will pay for it. Bonds are not always necessary, as some states will waive them if your PR is also a beneficiary of your estate. You can also include a request to waive a bond in your Will.

5. Inform Beneficiaries & Creditors. This is likely the biggest task most PRs will undertake. It involves finding and informing any potential beneficiaries and possible creditors of your passing. They will also need to communicate with creditors to settle your debts using money from your estate. Keep in mind that in cases where there is a Will, most, if not all, beneficiaries will be named, so informing them is usually an easier task. Finding creditors can be more difficult and time-consuming, regardless of whether or not a Will is present. It should make sense that both parts of this process become exponentially more difficult when there is no Will.

6. Determine Value of Assets/Property. To determine the value of an estate, an inventory and appraisal must first be completed. This will account for everything you own at the time of your death. Sometimes, particularly in larger estates, a professional appraiser may be needed. This person understands the process of collecting and inventorying all real estate, personal, and household items to assess their value. The total combined value is then used to estimate the value of your estate.

7. Pay All Fees and Debts of the Deceased. Funeral expenses are typically paid from your estate. Once this is paid, the estate will fund the payments for medical expenses, filing and paying taxes, and handling other unpaid debts you may owe at the time of your death. This step needs careful attention, because there is potential for debtors to go after beneficiaries in the future to recoup any unpaid debts.

8. Distribute Remaining Assets. After all the debts have been paid, any remaining assets will be forwarded to the appropriate beneficiaries. The PR will transfer deeds and titles into the correct beneficiary’s name, per the direction of the Will or the court.

9. Final Report or Decree of Distribution. Once everything is all distributed, the PR files either a Declaration of Completion (basically reporting to the court and the beneficiaries all the expenses that were paid and that all distributions have been made) or files a Petition for a Decree of Distribution, requesting the court's approval of everything the PR has done.

If you have questions about the probate process or have been named as PR of a loved one's estate and need legal representation, give us a call at 253.858.5434 to set up an appointment today.