Do You Want to Try to Avoid It?
Frequently, when you hear a discussion of or reference to probate, it’s about how to avoid it. Let’s take a look at what probate is, and then we’ll consider whether you want to avoid it. We’ll also look at some ways to do just that.
What Is Probate?
When you die, one of the necessary tasks to be handled is the transfer of property you own. Who will get the property, and how will it become their property? That’s the primary function of the probate process—to oversee the orderly distribution and transfer of your assets in accordance with your wishes. It’s also referred to as “settling your estate.”
The probate process enlists the power of the probate court to make certain all necessary legal steps are taken after your death to pass on your property according to your wishes. It’s important to understand, though, that the probate court only handles the distribution of assets you own at the time of your death. The probate process does not apply to property you give to someone else before you die. It also does not cover property you own jointly with another person at the time of your death—that property automatically transfers to the other living joint owners. Probate also doesn’t involve property that has been placed in trust.
An estate may go through the probate process, whether or not there is a valid and enforceable will. If there’s a will, you are considered to have died “testate,” and the probate court will ensure that the executor distributes your property in accordance with the provisions of your will. If you die without a will, you are considered to have died “intestate.” When that happens, the court will apply state laws of intestacy to determine how property is allocated.
Do You Want to Avoid Probate?
There are generally two reasons a person wishes to avoid probate—the length of time the process takes and the potential cost. Depending on the complexity of the estate, the probate process can take months or even years to resolve. In addition, the attorney handling the estate in probate court often takes a percentage of the value of the estate as a fee. Property that passes outside of probate can pass virtually immediately and with no loss of value.
Contact Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP
At Barnard, Mezzanotte, Pinnie, Seelaus & Kraft LLP, we have protected the rights of individuals throughout Delaware County since 1980, including those with wrongful death claims. We offer a free initial consultation. To schedule an appointment, call us at 610-565-4055 or 302-594-4535 or contact us online.