After someone dies, their remaining assets and property are identified and then distributed dependent upon existing instructions, legal mechanisms (such as trusts), and laws. This may bring to mind dramatic will readings held in wood-paneled rooms among a gathering of the family and friends of the deceased. In reality, the process is often straightforward and absent of shocking moments worthy of daytime soap operas.
However, it’s common for a portion of the process to take place in a courtroom—namely, probate court. The probate process takes different forms depending on how prepared someone’s estate was before they passed away. On the most general level its purpose is to validate an existing last will and testament, determine the executor of the estate, identify and locate the deceased’s assets, paying debts owed to creditors through estate assets, and then distributing remaining assets among inheritors.
Because of the legal processes involved with probate, families will hire a probate court attorney to make sure it doesn’t drag on any longer than it has to. Even though the process is codified and usually consistent from case to case, the latter half of probate—asset location, asset ownership (what you own, who controls it and who will receive it), paying creditors, and then distributing what remains—can become protracted as it is not always clear on what the decedent owns and how it was owned. There are also other assets not deemed probate assets that need to be distributed. Most states have a law that requires probate cases to stay open for a year in order to allow time for creditors to come forward and collect debt.
That’s not even factoring in the standard array of paperwork involved in the most common form of probate, known as informal probate. There are key timing considerations up front—notifying many people before an informal probate petition and again after the petition is allowed—followed by several forms to file through the court, whether the estate holder died with or without a last will and testament.
In addition, probate court can become expensive between the amount of time needed to retain a probate court attorney through the process, unexpected debts, taxes, and settling any disputes. This only becomes truer for estates with a value over what the state determines as small estate (in Massachusetts, that dollar amount is $25,000) thus removing the option of a simplified probate process.
This all means probate court is an unfortunate but necessary evil, right? No, in fact with the right foresight and planning your estate ahead of time, probate court doesn’t have to be something you or your family ever has to deal with.
This is something we at Family Estate Planning Law Group prides ourselves on. Our team at FEPLG stresses intelligent estate planning ahead of time to make sure you and your family are protected from unnecessary and adverse processes after someone dies. Probate is lengthy, costly, and public while also significantly delaying inheritors’ access to assets, especially if the assets are not organized, terms of a will aren’t clear and the family hasn’t been a part of the planning beforehand.
FEPLG’s estate planning strategy focuses on creating and most importantly retitling and aligning assets with a living trust that can eliminate any need for probate court at all. By careful planning, involving any or all family members in the creation of an estate plan, and regularly recurring realignment of estate assets through our ongoing client care program, we make sure that any family’s estate plan is always up-to-date and clearly outlined to the point that the probate process can be greatly mitigated or avoided entirely. Our team does the legwork up front by helping you gather and list (on our customized estate planning spreadsheet) all of your assets, setting up your estate plan and continually updating the assets and planning document so that your family will not have to a long court process added to the pain of losing a loved one.
To learn more about avoiding probate, our unique ongoing client care program, and other estate planning topics, visit our website and explore our blog. Ready to plan for life and protect your family? Schedule your complimentary consultation today!