Understanding the Probate Process

probate

It is common to hear the statement, "I want to avoid probate" or "I don't want my family to go through the horrors of probate." When you ask these same individuals "What is probate?" many do not have an answer.

Probate is one of the least understood of court processes. However, it is a procedure that can affect the family and heirs of every mature adult following his or her death.

Simply stated, probate is a special state court legal process for settling the debts of someone who has died, and distributing the remaining property to rightful heirs.

In a probate, the person who is authorized by the probate court to administer the estate of a deceased person is called a personal representative (or executor or administrator in some states).

A primary purpose of the probate process is to have a personal representative appointed for the deceased individual. The personal representative must be appointed in order to "sign" the decedent's name after death.

During life, a person signs a deed or bill of sale to transfer property. When a person dies, it is still necessary to have some document to show a transfer of title. In other words, a "signature" of the decedent is necessary. The probate process provides one method of doing this. By appointing a personal representative, the court authorizes that person or persons to sign for the deceased individual.

As was explained in an earlier article in this column, a revocable living trust provides another method. The revocable living trust provides for a successor trustee upon the death of the person who originally created the trust. In so doing, the court appointed personal representative is not necessary if assets have been properly transferred into the name of the trust.

Many people believe that if they have a will there will be no probate. Nothing could be further from the truth. Whether you have a will or do not have a will, your estate must go through a probate proceeding if the assets are in your sole name.

The only difference between dying with a will and dying without a will is that if you die with a will, you tell the probate court how you would like to have your property distributed after your death. If you die without a will, the state legislature tells the probate court how to distribute your estate. In either case, probate will take place.

When considering whether to "avoid probate" or not, it is important to understand what is being avoided. Although it is true that in most cases the use of a revocable living trust will require less overall expense than the administration of an estate through the probate court, you may not want to spend more money while you are alive to have a fully, funded revocable trust prepared as compared to waiting and allowing the estate to pay for the probate fees.

In all cases, it is important to be educated about the different estate planning tools. After you have reviewed the different estate planning possibilities, you can then make a decision as to what is best for you.

Jeffery J. McKenna is a local attorney whose practice has been focused on Estate Planning for over 20 years. He is licensed and serves clients in Utah, Arizona and Nevada. He is a shareholder at the law firm of Barney, McKenna and Olmstead. If you have questions you would like addressed, please feel free to contact him at 435 628-1711 or jmckenna@barney-mckenna.com or visit the firm's website at WWW.BARNEY-MCKENNA.COM.