When a person dies and leaves behind a last will and testament, the question of whether probate is required arises.
It is a common misconception that if there is a will, probate is not necessary. That is incorrect. Furthermore, the person named in the will as the executor does not automatically assume control over the deceased person’s estate. The nomination in the will simply designates the executor desired by the decedent, but the court’s approval of the nomination is required. All that happens during the probate process.
Probate is a court supervised proceeding that validates the will, approves the qualified executor, and confirms the distribution of the decedent’s assets. This description of the probate process is extremely simplified for the purpose of this article. Routine probate proceeding takes approximately 120 to 180 days. The attorney’s fees are typically based on the value of the estate and are prescribed by the statute.
Probate is typically a time-consuming and expensive process, and it is often beneficial to avoid it.
Sometimes, probate may be avoided. If the deceased person’s assets are held in joint tenancy, probate should not be necessary. Joint tenancy is a form of co-ownership where two or more individuals own property together, and when one owner dies, the surviving owner automatically takes ownership of the property.
If the deceased person’s assets have a beneficiary designation, probate also should not be necessary. Beneficiary designations are commonly used for retirement accounts and life insurance policies, where the named beneficiaries receive the proceeds directly upon the death of the account or policy holder. Beneficiary designations can also be used with bank and investment accounts.
One way to do this is by setting up a revocable living trust. A revocable living trust is a legal entity that holds the assets and property of the trust creator during their lifetime and distributes those assets to the beneficiaries named in the trust upon the creator’s death. Because the trust holds the assets, there is no need for probate, and the distribution of assets can occur much faster than with a will.
In today’s world, it is tempting to prepare a trust yourself or online. However, by doing so, one might be creating more complications than resolutions. It is worth it to get the legal documents done right the first time by an attorney.
Most people understand the need for a trust but oftentimes wait until it is too late. The most common reason for delay is the concern that the process will be too expensive. However, the essential documents can be completed at a reasonable cost. If needed, the optional documents can be completed in the future. Regrettably, the need for an estate plan is often ignored or the documents remain incomplete, causing additional distress to the deceased’s loved ones.
Ultimately, the answer to whether probate is necessary when there is last will and testament depends on the specific circumstances of the estate. If the deceased person’s assets are held in joint tenancy or with a beneficiary designation, or the deceased person had a trust, probate probably can be avoided. Otherwise, probate may be required.
Natalia Vander Laan is a Minden attorney.