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What Do You Mean Probate?

by TimDenker | on December 29, 2011 

A couple of years ago, a client came into my office trying to figure out how to transfer the title of their deceased father’s house into that client’s name. The father didn’t have a Will or any resemblance of an estate plan, so I kept asking questions. It turned out the father had another son who they didn’t talk to anymore and quite a bit of furniture and other household goods. While it was a pretty modest estate the house had to be sold to help pay for the probate expenses, it was going to take at least 9 months before everything was going to be resolved, and this was all based on the hope that his brother was going to actually cooperate, which rarely happens.

On my last blog I made some references to “non-probate planning,” without really defining probate. Simply put, probate is the department in the courts that deals with passing property to heirs at a person’s death. However, the process itself is not as simple as the definition. There are a multitude of steps and rules that need to be followed. Is there a Will? What property is passing through the will? Who gets what? What if two of the heirs want the same piece of property? Is there enough money in the estate to pay the expenses, or will the heirs have to pony up their own money? The list of questions goes on and on and rarely is the answer simple. Here are a few of the more common questions I get. If any of this relates to you, make sure you talk to an attorney before acting. This is only generic advice, and may not directly apply to your situation.

When my parent dies am I responsible to pay off their debts? Basically, the answer is no. The only way you should pay any debts off or agree to pay debts off of the parent is if you were already obligated to pay off that debt to begin with. Otherwise, those should be dealt with accordingly when settling the probate estate.

Should I open up a probate estate if there’s more debt than assets? Probably. This answer depends on the situation (type of debt, type of property, etc.). The ultimate goal in these estates is to maximize the value of the assets to pass to the heirs while still paying off the necessary creditors pursuant to what the law provides.

If there is a Will, does that mean the property does not have to go through probate? No. This is a very common misconception. First off, everyone does need a Will. The Will provides a safety net in the event part of the person’s estate plan is not executed accordingly, is not modified when a triggering event occurs, or some extraneous event causes a probate case to be opened by a 3rd party (i.e. creditor, disinherited heir, etc.). However, the Will does not avoid probate.

The good news is that probate is completely avoidable, and planning to do so is one of the essential elements of every estate plan I put together for my clients. There are quite a few methods that can be used, and some are better than others. The key elements to having an effective non-probate plan are to (1) implement your plan immediately after you execute the rest of your estate planning documents; (2) review and update it when necessary; and (3) make sure it accurately reflects your chosen estate plan.


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