The Probate Process: There are other options!
Jessica and John are in their 60s; they have two children. Unfortunately, John’s parents died in an automobile accident two years ago. John’s parents had a last will and testament written with their attorney’s help twenty years ago, but they had not updated it prior to their deaths. John has two brothers. John says that his parents intended for all property and assets to be sold and divided evenly between their three children. John’s brother, a gambler, has fallen on hard times and has contested the will. The will has been in the probate process for four months now.
Probate is the court-supervised process of itemizing and valuing the assets, paying bills and taxes for the decedent, and then distributing the rest of the assets to the beneficiaries as per the will’s instructions.
The probate process starts
John filed the will and the death certificate with the probate court four months ago. A notice of the upcoming probate hearing was sent to all heirs and beneficiaries and was posted in the local paper. A hearing was held, and John’s brother stated his parents intended to change the will, and he is sure there is a more recent copy of the will. Heirs, beneficiaries, and people who thought they would be beneficiaries but were omitted may all come forward to challenge a will. It is not unusual for contesters to claim that the writer lacked the legal or mental ability to write the will or was unfairly pressured by an outside party. State law usually determines how long someone has to file an objection. The judge gave John’s brother 30 days to locate a more recent will.
John is frustrated since the estate has already been in probate for four months. This delay is not unusual, as probate can take between 18 and 24 months.
The probate process continues…
John’s parents named him as the executor of the estate. Once the court tells him to proceed, he will locate all of his parents’ assets, pay all bills, and maintain insurance. An appraiser may be hired to determine the value of the assets. All creditors must be notified of the death to have sufficient time to make claims against the estate to satisfy the debts. Depending on the state, this process may take an additional four to nine months. John will then file his parent’s tax returns, pay funeral expenses, and verify all debts have been paid. When all of these steps have been completed, John will petition the court to distribute the rest of his parents’ assets according to the will’s instructions.
Why does probate take so long?
The paperwork necessary for moving through the probate process can overwhelm, especially if the estate is large or complicated. If the probate caseload is high or the court is understaffed, the process may be further delayed. Updating your will regularly and keeping an organized record of all your assets and debts can speed up the probate process. Your attorney can help you with this process.
There is another option!
There is another option, creating a trust. When creating a trust, you transfer your assets and property to the trust. These assets and property are viewed by the court as owned by the trust, not by the individual who funded the trust. The assets are distributed according to the instructions in the trust agreement.
Whether you choose a will or a trust to transfer assets to the next generation, we can help you ensure the process is as seamless as possible and that the will is written or the trust is structured so that the assets are transferred and distributed as you intended. A trust can keep your estate out of probate court and save your beneficiaries the time and expense associated with it.