There are several misconceptions about probate which can mislead you as an estate owner or an estate executor. One of the most common misconceptions is that individuals can escape probate by simply drafting a will. Another misconception is that if you don’t have a will, all your assets will be transferred to the government.
As an estate owner or an estate executor, you must know how to differentiate misconceptions from facts as far as probate is concerned. Of course, you may hire a probate attorney when the probate process starts. But, there is nothing as cool as having a little knowledge of the process yourself and being able to spot the various misconceptions that plagues this difficult, time-consuming, and expensive process.
As we progress, we will be taking a look at some of the common misconceptions about the probate process.
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.
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.
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.