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Is Probate Necessary?

Asset Protection Strategies for Medicaid Eligibility
The probate process gets a bad reputation, but it’s the reality many families will face. It is a process that can function well for some small estates.

WTOP’s recent article entitled “Everything You Need to Know About Probate” explains that probate is the court-supervised proceeding, in which the assets of the decedent are distributed to his or her heirs. This involves validating the decedent’s will, distributing assets and ensuring that the debts of the estate are paid. Often, Beck, Lenox & Stolzer Estate Planning and Elder Law, LLC, LLC, is asked, “Is Probate necessary?” due to confusion about the process. Here’s a good overview for you.

Probate is how assets formally pass from one person who passed away to their heirs or beneficiaries. It can be long and complex or pretty efficient. Each state has its own probate code, and some have a small estate probate process for estates that are under a certain threshold. The administration of the estate involves the executor or personal representative, beneficiaries, creditors and a probate judge.

The probate process is required by state law to manage the decedent’s assets and property that aren’t transferred by contract law, state titling law, or trust law. As a result, any assets or property awarded in a last will or assets owned by an individual who dies without a will may require it.

Property that passes through probate includes assets and property awarded to heirs through a will, such as household goods, automobiles and personal property owned at death but not awarded in the will and not otherwise transferred.

If a person dies intestate or without a valid will, the disposition of their property will be controlled by the laws of intestacy of the state where the decedent resided at death. Probate property is all property that was held individually and that does not have a beneficiary designation.

Each state has its own process. However, the first step in probate generally is to produce a will. A probate attorney can determine if all of the heirs will consent to have it probated. If there’s not going to be any objection, the attorney can prepare the documents and have the waivers signed by the distributees. Once they sign and notarize the consent, the attorney can take the will with the probate documents and have it filed.

After a will is deemed valid, the executor of the estate and the attorney will file certain documentation with the court. This might include the will, a certified copy of the death certificate, a list of names and addresses of the decedent’s heirs and any known creditors. Creditors will be paid first, then the remaining assets are distributed to the heirs. After any required tax returns are filed, the executor will ask the court to close the estate.

When mentioned earlier that some potential clients ask Beck, Lenox & Stolzer, “Is Probate necessary?”, it is because they think a will is all it takes to avoid it.  That is when the attorneys explain the difference between a will and a trust, and why it is the trust that does not need to be probated. Here’s a link with information about that.

Reference: WTOP (Aug. 31, 20211) “Everything You Need to Know About Probate”


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