Before we look at the common misconceptions about the probate process, let us take a look at what probate is.
What is Probate?
Probate is a very common court process. It is usually done to determine the validity of a will and administer a deceased’s estate. If you drafted a last will and testament, probate will involve proving that your will is legally valid, executing your wishes writing in the will and settling all outstanding taxes.
Having a well-drafted will is one of the best ways to make probate easier on your loved ones. After all, your will doesn’t only contain the names of those you want to inherit your assets. It also contains the name of a guardian, an individual who you’d like to cater to your kids if both parents were to pass away. In addition, your will designate an estate executor who is to act on your behalf after your demise. It is the duty of your estate executor to ensure that your wishes are upheld.
Common Misconception about Probate
- A trust is a simpler, and cheaper tool than a will and probate
There are many benefits attached to using a living trust and preventing probate. A living trust allows you to transfer all or a few of your assets to a trust while alive and use the income generated for your benefit.
After your death, the terms of the trust will show property uses and the use of assets for different designated beneficiaries. While this process is very effective in preventing probate as there is no will, a living trust can be costly and a complicated arrangement. There exist some situations where a living trust may be suitable to a will and the other way round. But, the decision to create a living trust or a will is usually based on the circumstance of the individual. Ensure you speak to an attorney for advice on which would be best for your estate.
- If I die intestate (without a will) my property goes to the government
If you die without a will, the government wouldn’t claim ownership of your property. While failure to create a will is a bad idea, state law provides a hierarchy of beneficiaries that your property will be transferred to after your death. This is commonly regarded as dying intestate.
A will states how you want your properties to be transferred or distributed after your death, it states the name of your executor (the individual who administers the estate via probate and share your property), and the individuals who you want to inherit your assets after your death.
The intestacy laws of each states provide selected beneficiaries and the court will designate an administrator to supervise the payments of the debts and make sure that the property distributions is done in line with the deceased’s will. The administrator is normally someone who the individual holding most of your assets nominates and the court approves.
- Probate is costly and my estate will pay huge taxes
Generally, probate is not really expensive. In large complicated estates or if there is a lawsuit over your estate, such as beneficiaries contesting the will, executor, or property distributions, then probate could be a costly process. In addition, there is an exemption from the estate tax “death tax” where your estate will have to be worth millions of dollars in assets before the estate tax applies. In some states, attorneys are allowed to charge a percentage of the gross assets as fees. However, this varies state by state.
- Probate can take several years to complete
This is quite misleading. Not all probate takes time. For instance, the Texas probate code makes it very easy. If all is in order, you will be facing a judge for a max of five to ten minutes. The whole process can take a minimum of 30 days to complete with a will. However, disputes can cause a lot of setbacks in the administration of an estate.
Contact our office if you have questions regarding probate, other misconceptions that exist, or if you need a probate attorney for your estate. Our probate attorneys are experienced and versed in matters regarding probate and can help in ensuring that the probate process is done without any hindrance.