Many people are unfamiliar with the term “probate.” But it’s an important process in terms of winding up a decedent’s affairs. The truth is also that you should be familiar with the process now in order to help your executor, the beneficiaries of your assets, and your estate. Please contact us now to help ensure your estate plan is current and works properly for you and your loved ones.
What is Probate?
Probate refers to the general administration of a decedent’s estate. It involves the paying off of a decedent’s debts and the distribution of his/her assets, such as:
- Bank accounts,
- Real estate, and
- Financial investments.
The process is typically overseen by a judge. The judge provides the final ruling on the division and distribution of a decedent’s assets. Probate usually takes place no matter if you have or don’t have a will.
How Does Probate Work with a Will?
A person is known as a “testator” if he/she passes and has a will in place. When a testator dies, an executor is responsible for beginning the probate process. He/she does so by filing the testator’s will with the applicable probate court (usually the county probate court where the testator resided).
Note that states will have different rules as to when an executor must file a will with the court. Once the will is filed, though, probate begins. The judge then officially appoints the executor as such, and the executor then has the legal power to act on behalf of the decedent.
The executor is obligated to complete several tasks in order to complete the probate process. These tasks include:
- Locating and overseeing all the decedent’s assets,
- Estimating the value of the estate,
- Paying off any taxes and debts owed by the testator,
- Filing the decedent’s final personal income tax returns, and
- Helping to distribute assets to their intended beneficiaries.
Probate is generally closed once all these tasks are performed.
How Does Probate Work Without a Will?
A person dies “intestate” if he/she passes without a will. The court appoints an “administrator,” who serves many of the same tasks as an executor. But a key difference between probate with and without a will involves how assets get distributed. When a will is in place, the will typically determines how and to who a decedent’s assets get distributed. But state laws usually make these determinations when there is no will in place.
An administrator is usually tasked with locating any heirs of the deceased, such as:
- Surviving spouses,
- Children, and
- Parents
The probate court then determines what assets need to get distributed among the heirs and how distribution takes place. Most state laws say that estate assets, when there is no will, get divided among the surviving spouse and the decedent’s children.
Contact The McWilliams Law Group for Help
The established California and Washington estate planning attorneys at the McWilliams Law Group help you prepare for the future today. Our attorneys can help you determine whether your estate plan requires a living will, a healthcare power of attorney, or another related document.
Note that our firm provides legal assistance with the following:
- Will drafting, execution and review
- Living Trusts
- Advance healthcare directives (living Wills)
- Powers of attorney
- Estate and gift tax issues
- Guardianships and conservatorships
- Choosing the appropriate executor and/or trustee
The skilled attorneys at our firm can help thoroughly analyze your estate and strategize the best means of transferring your assets, minimizing taxes, establishing guardianship, and supporting philanthropic causes. Contact us now and let us help protect your personal security, family, and legacy.
