Whether you have a last will and testament or not, your estate may have to go through the probate process. Probate is the legal process to administer and settle the estate of an individual who has passed away. When a person dies, their estate consists of assets, both real and personal property, they own on their date of death. It also includes the decedent’s debts, final expenses, and unpaid taxes. Somebody needs to be in charge of an estate to settle the affairs on behalf of the decedent.
Family members should first locate or find the decedent’s last will and testament to identify who has been named personal representative of the estate. A review of the decedent’s assets will determine how accounts are legally owned or titled, the approximate size of the estate, and whether specific assets need to go through probate. If it is necessary for the estate to go through probate, the personal representative would hire an attorney to start the probate process by filing documents with the court.
Probate proceedings take place in the state where the decedent lived when they died. If the decedent owned property in more than one state, this could result in going through the probate process in more than one state. This is called ancillary probate.
When an individual passes away without a last will and testament, an estate is required to go through probate. Most states have special laws, known as intestacy laws, in which the administrator of the estate would go through the court system to legally name an executor, identify the legal heirs of the decedent, and commence probate proceedings.
Attorneys can help their clients to avoid the probate process. One common planning technique is to execute and fund a revocable living trust during your lifetime. When assets are owned by a revocable living trust, the trustee can transfer ownership to the named trust beneficiaries without going through probate. Additionally, assets owned by the decedent in joint tenancy or accounts with a named eligible beneficiary will pass directly to the beneficiary without going through the probate process. Common examples of these are retirement accounts or life insurance policies.
Not all executed last will and testaments have to go through probate. Small estate laws were enacted to enable heirs to collect personal property of the decedent without going through probate. Both North Dakota and Minnesota (and many other states) have small estate affidavit statutes that provide specific requirements to file an affidavit for the collection of personal property of the decedent. The affidavit form can be completed and if all criteria are met by the rightful heir, the estate can bypass the probate process.
Estate planning with your attorney is key to ensure your documents are well written making sure your wishes are carried out, you have thought to name the right person, attorney, or trust company to handle the settlement of your estate, and guide you to follow through to make sure your assets and accounts are titled correctly. Working with professionals during your lifetime can help to make sure you have done everything possible to make the settlement of your estate easier for your loved ones.
Will your estate need to go through probate? There is no simple answer to this question. However, you can take steps to help your heirs avoid it by starting the estate planning process with your attorney today. Heartland Trust Company can help you with this process as well. We have the ability to serve as personal representatives to help avoid family conflict and ease the burden of assigning the responsibility to an individual. We’re always here to help.
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