If you are an heir or beneficiary to an estate, you may have imagined that
receiving an inheritance is much like it’s depicted on film. The
decedent’s heirs gather in the attorney’s office as he reads
the will to a captive audience.
In the movies, after the “reading of the will,” the heirs receive
a check from the estate and are sent on their merry way. Unfortunately,
this scenario is more of a Hollywood story than real life. In reality,
most, but not all, estates go through probate before the heirs receive
their inheritance.
Reasons for Probate
What is probate, and why is this process important? Probate is the process
of validating a will and ensuring that it is faithfully executed. Although
some assets pass outside of probate, for example, assets with beneficiary
designations, many assets in a will are controlled by the probate court
with jurisdiction.
If you wish to avoid probate altogether, you do have options. For instance,
you can create a living trust.
Advantages of probate, include:
- The creditors are paid.
- The decedent’s taxes are paid.
- The executor cannot engage in self-dealing.
- The executor is overseen by the probate court.
- The executor must provide the court and heirs with an accounting.
- The executor cannot engage in a conflict of interest.
- Gives the creator of the will peace of mind that the court will oversee
the distribution of their estate.
When an individual creates an estate plan, they must decide who will manage
their estate. Generally, the creator of the will appoints a spouse, a
son or daughter, a sibling, or a close friend to be the executor of their
estate when they die.
If the creator of the will does not wish to have a family member settle
their estate, they can hire a lawyer to handle it for them instead.
On the other hand, whenever an executor (non-attorney) is appointed by
the probate court, they are strongly encouraged to seek representation
from an experienced probate attorney.