Monday, June 27, 2011

Frequently Asked Questions About Probate

What is probate?

Probate is defined as“the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under the valid will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.”

 The definition doesn’t sound too bad, but probate can be a very trying process. Even in the best of circumstances there are procedures that must be followed to the letter, and the actual process (depending on the size of the estate and the laws of the state in which the property is being probated) can take anywhere from 6 months to a few years.

Do I need a lawyer to help probate an estate?

As a rule it is not necessary to have a lawyer help you probate an estate.  However, if you have been named as executor, probate can often become an overwhelming maze of deadlines, notifications and potential liabilities.  This is why many executors do choose to hire a probate lawyer to help them through the process.

You may want to think about hiring an attorney if you are serving as an executor under any of the following circumstances:

·         There are a number of beneficiaries who are not on friendly terms, or are receiving varying sizes of inheritance.

·         The decedent had large estate with many different assets, especially if the assets are not commonly held.

·         The decedent was a resident in a different state than your own home state.

·         A large number of creditors are making claims on the estate.

·         There is a disagreement about the will, or if more than one will was found.

·         The will is challenged or contested.

Do Life Insurance or Retirement Benefits Have to Go Through Probate?

The answer to the question above is generally “no”; life insurance and retirement benefits do not have to go through probate if the account has a named beneficiary.  Benefits from life insurance accounts can be paid directly to the named beneficiary, and money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the named beneficiaries of those accounts as well.  The persons named as beneficiary, however, will most likely want to consult with a financial advisor to determine what needs to be done with the proceeds from these accounts. Another type of account that may not be subject to probate is a pay on death (or POD) account, the money from which can pass directly to the named beneficiary upon the death of the owner.

Probate is a subject most people don’t want to spend much time considering, not only because the rules and requirements can be convoluted and confusing, but also because of the close association between probate and death. If you have any questions at all about the probate process please don’t hesitate to contact our office—or your own local attorney who specializes in probate—for more information.