A probate is the legal process of taking account of a decedent’s estate and wishes, and then attending to creditors’ claims and heirs’ entitlements. It’s often complex and costly, and people might wonder if this administrative hurdle can be sidestepped.
When probate is a must
There are cases when probate is required. For instance, if the estate’s assets belonged to the deceased and to no one else, with no named beneficiary or with the estate as named beneficiary, probate is necessary.
If there is a will, probate is required to give formal recognition to the will. The will must be filed in a reasonable amount of time, not to exceed five years.
Circumvention
Mindful of the time and costs associated with probate, people often plan a path around it:
- If the estate’s assets have been included in a living trust, probate can be bypassed.
- If there’s no will, the heirs are in agreement and the creditors present no disputes, probate can be bypassed.
- To the extent that beneficiaries can be named outside of the will, as with bank accounts, IRAs, retirement accounts, life insurance policies and transfer and payable-on-death accounts, probate can be bypassed.
- If assets are held in joint tenancy, probate can be bypassed.
Many issues and complexities arise with settling an estate, a process than can often span years. Whether or not probate is necessary, it’s wise to consult with experienced counsel for guidance and, if needed, advocacy.