What is Probate?

WUsually when probate comes up in conversation (yes, I do estate planning, it does come up in conversation), everyone is interested in ways to avoid it. That does make sense – probate proceedings take time and cost money, and they happen at a difficult time.

Grief and losing someone deserve their own post, but I thought I would write a little on probate just to deconstruct it a bit.

Having to go through probate is not the end of the world. It is certainly a headache. It entails forms, court time and yes, you should have an attorney (mostly because we already have the forms and know where to park for Court). But it is doable.

So what is it? Probate can be defined in the following ways:

  1. The proving of a will
  2. The distribution of a decedent’s estate and reconciling of any debts

The proving of a will

First, there needs to be a will in order for this definition to work, obviously. A will is a document that a person uses to memorialize who they want to have as the representative of their property and interests when they die (this person is called the executor or more commonly now the Personal Representative); who they want to get what upon their passing and how they want their estate to get paid (this can get more complicated when certain tax concerns are involved or if there is a mix of assets and therefore various ways money can get distributed).

Proving a will simply means the Personal Representative named in that will goes in front of a Probate Court judge and swears that they will follow the instructions set out by the person who just died and do so ethically and correctly. This is also an opportunity for any other family members to come forward and “contest” or argue against the will. That can get pretty exciting.

Distribution of a decedent’s estate

But what if there is no will?

The State has an interest in making sure a person’s assets get cashed out, liquidated and/or distributed because the State a) is waiting for tax payments and b) has a policy of honoring family ties and making sure surviving members are provided for (a more comforting motivation).

Because of this interest, there are intestate succession statutes which outline what to do if there is no will. Intestacy simply means “without a testament” which is basically any written evidence of your wishes (like a will would be). Because the State doesn’t want everyone to just fight over money or the bossiest member of the family to just take over everything (unless, of course, that’s what the decedent wanted and said so), intestate probate proceedings were created and follow the directions laid out in the statutes to try and resolve things equitably. The surviving spouse is provided for, as are the children; any other more distant descendants can also be provided for if the estate is large enough or if there are no surviving immediate family members.

As you can imagine, this can get pretty ugly. People start to feel like the government is telling them what to do (true) and all kinds of jealousies and resentments tend to bubble up and even come out in Court (sad). It’s not that having a will to work with necessarily eliminates this monkey business, but it does seem to limit it since it’s the decedent and not the State telling us what to do with the money.

Anyway, with or without a will, Probate is about making sure all debts, expenses and taxes get paid and that the remaining assets get to the right people. This usually takes a few scheduled court dates – one to open the Probate case, appoint a Personal Representative, allow an opportunity for any descendants to speak up and be heard, etc.; one to show everything has been figured out and we know how it’s all to be distributed. How it all gets scheduled will depend on how busy the Probate Court is, how well you or your attorney follow through on filing forms and how complicated the estate distribution is.

But generally, Probate takes months if not a year. This isn’t just due to delays – it is good not to rush the process because it allows for things to come out of the woodwork, if you will. Probate hearing dates are published so as to notify any and everyone who may be interested in this individual’s passing. Obituaries are not only a meaningful way to embody a person’s memory, they also serve as public notice of their passing. The point of all this publishing is to have made our best effort to broadcast that this person’s assets need to pass to someone else (I’m sorry to put it in such mercenary terms).

Honestly, I feel like I’m opening a can of worms here – this article was meant to and will hopefully serve as a very broad overview of what Probate is – it can actually be a lot like opening a can of worms. Which makes probate lawyering a bit like gardening. But I digress.

It is a little overwhelming to begin with, but Probate can be done. Come see me if you’d like to discuss how it might play out in your family. It’ll be fun!

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Maya Missaghi practices estate planning and probate with Missaghi Law, PLLC, as well as elder law. She has gotten over her fear of going to Court and now happily meets her clients there when absolutely necessary. She even knows where to park. She will gladly help make any Court visits less terrifying, fill out the appropriate forms and make scheduling phone calls (multitasking). She can be reached at maya@mmlawservices.com or 952-237-9602.

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