| What is a “probate”?
Answer: A probate is the process during which a decedent’s will is submitted to a court for authentication, management of assets subject to the will during probate, and distribution of those assets to the appropriate heirs during or at the end of the probate process. It is possible for there to be challenges to the will – claims may be based upon fraud, lack of incompetence of the decedent when the will was made, duress, and many other reasons. If the will is not challenged or if it is challenged unsuccessfully then the “executor” (the person named in the will to oversee the probate) will gather and manage the assets, account to the court, and then distribute the assets.
Is a will adequate to pass my assets?
Answer: The answer will depend upon your particular situation. There are situations when heirs are adults with no more children or grandchildren likely, there is an insubstantial amount of assets, or there are no heirs. See the discussion under Estate Planning for more information.
Is a probate expensive?
Answer: “Expensive” is a relative term. There are probate fees (paid to an executor unless waived), legal fees, and perhaps accountant and investment manager fees that may be incurred. The goal is to carefully see to it that a decedent’s desires are properly carried out and the assets are properly managed. In order to assure that to the extent possible there are rules and regulations established by the state that must be followed.
Can I avoid probate?
Answer: Even under a properly drafted estate plan there will likely be a probate but it may be a small matter if the majority of assets pass under a trust. Since not all of a person’s assets normally end up in a trust for practical reasons (e.g., furniture and personal effects) it is necessary to have “pour-over” will that provides for passing assets that are not in the trust at death under the terms of the trust or outside of the trust. |
