WHAT IS PROBATE?
Probate is the process by which a court oversees distribution of a deceased person's estate. Probate gives legal authority to an appointed person – sometimes called a “personal representative,” “executor,” or “administrator” – to settle all matters for the estate, including gathering assets, paying debts and taxes, and finally transferring assets to those who inherit them.
The way in which probate works depends on the specific circumstances. If there is a will, the probate court first acts to make sure it is legally valid. At that point, the process moves forward and the estate is handled as the deceased person intends. If there is no will, the deceased person “died intestate,” and the estate is distributed by the court according to state law which may not align with the deceased's wishes.
The Pros and Cons of Probate
The probate system was established to protect property of a deceased person and his or her heirs, and to provide for fair distribution of the estate. While the word “probate” often has a negative connotation, choosing to use the process may have distinct advantages. In estate planning, understanding the pros and cons of probate will empower individuals to make choices that are best for their unique circumstances.
The Pros
Here are some potential advantages of probating an estate:
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- If there is no will, probate provides a trustworthy procedure to distribute the deceased's property.
- If there is a valid will, probate validates and enforces the deceased's wishes so their wishes are honored in distributing the estate.
- Probate ensures taxes and claimed debts are paid, and the court-supervised distribution of the estate is final and protected from future claims or otherwise unresolved issues.
- If the deceased was in debt, probate limits the rights of creditors to make claims against the estate, which may preserve more assets for distribution.
- Choosing probate can be more efficient in situations that do not need complex estate planning.
The Cons
While probate is intended to facilitate fair transfer of property after someone dies, there are reasons to consider bypassing the process:
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- Probate is a matter of public record, which means personal family and financial information becomes available to the public.
- There may be considerable costs, including court, attorney, and executor fees, all of which get deducted from the value of the estate.
- Probate requires court supervision, which can be time-consuming, delaying distribution of assets for months or even years.
- Probate may add avoidable complications and stress for your executor and beneficiaries.
THE PROBATE PROCESS: A KEY ELEMENT IN DECIDING BETWEEN A WILL AND TRUST
When deciding between a will and a trust, it is critical to understand the probate process. Since everyone is different, it's important to analyze all aspects of your situation – including what the future may hold – so that you can determine what's right for you. If you have questions or are unsure what is best for you and your family, we can help. Contact us today!
Know that you want to avoid probate? Read 3 Simple Ways to Avoid Probate in Tennessee.
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