A Necessary Act: Understanding What Probate Does

Posted on: 29 December 2018


Avoiding probate has become quite the buzzword when it comes to estate planning. There is no doubt about it, probate should be avoided. Probate takes the property of the deceased and sends it through a legal journey that can take months to be complete. It makes the personal affairs of the deceased public, and it keeps beneficiaries from taking ownership of their property for an extended period of time. While there is much you can do to keep a great deal of your property out of probate's grasp, probate is not going anywhere anytime soon. Read on to find out why probate is such a necessary part of the estate process.

Where There's a Will

There is some confusion about how a will affects probate. If a death occurs and a will is located, the will must be submitted to probate court. That means that even if the deceased has managed to address most or all of their property outside of probate (see below), the will must still be probated. On the other hand, if the deceased has died intestate (without a valid will), the estate will still have to go through the probate process. No matter what, probate proceeds. Only in cases where the estate is very small (in some states) can probate be abbreviated or skipped.

Keeping Your Assets from Probate

As mentioned above, you can use various alternative means to address some or all of your estate property. Doing so means that while probate will still happen, the probate process is not as extensive or intrusive. Speak to your estate attorney about the following probate-skipping measures:

1. Revocable trusts

2. Payable-on-death designations

3. Deed designations

How Probate Deals with Debts

Since none of the above probate-skippers are equipped to adequately deal with debt, probate steps in. Probate ensures that if the deceased owes money, the issue is addressed. Whether a will is present or not, the probate court has the power to appoint an executor or personal representative. One of the main responsibilities of the executor is to pay the bills of the estate under the direction of the probate court. When an estate is filed in the probate court, a concurrent notice is placed to alert creditors of the death and urging them to come forward with any claims. The executor is charged with paying duly approved debts and filing and paying any tax debts.

Speak to estate planning attorneys like Thomason & Hessmer to learn more.