The term “probate” is the process that establishes the validity of a will by the court system. When a person draws up a will, they name an executor of their estate. When the person dies, it is the executor who is in charge of overseeing the estate, including filing the will with the court. The executor is also in charge of verifying and paying any debts the decedent had and distributing all the assets per the instructions left in the will. It takes 12 months for an estate and will to be probated before assets can be dispersed.
All assets must be probated in order to be distributed per the will instructions. Assets must also be probated if the decedent left no will and there is no other form of ownership, such as a deed to a property which lists co-owners. If the asset is owned jointly with another party or parties, then it does not have to go through the probate system. Another instance where probate is not necessary is if the decedent had placed the assets in a living trust. Life insurance proceeds with specific beneficiaries also do not have to be probated.
Why Is the Probate Process Important?
Many people do not want to have their wills probated. There are several reasons for this. One reason is that people feel it violates their right to privacy. Probate cases are public record, so when a will is being probated, all of the decedent’s financial records can be viewed by anyone.
Another reason many people do not like the idea of probating an estate is the costs associated with it. In most cases, you need to hire an attorney. There is also a cost for the probate process itself. Those costs are approximately 5 percent of the total value of the estate. The more complex a case is, the longer it takes, and the higher the legal costs.
And finally, it is important to remember when you are formulating your estate plan that when an estate has to go through the probate process, none of your heirs and loved ones will be able to access any of the assets that you are leaving them. This can cause financial difficulties, especially if there are children involved.
How to Avoid Probate
There are steps you can take to avoid the probate process and a skilled estate planning attorney can help. Some of the options you may have include:
- If you are leaving property to a loved one, place the property in joint ownership with that loved one. Once you pass, the full deed/title can then be transferred directly to them.
- Make sure to name beneficiaries on all IRAs, retirement plans, and any other type of financial accounts. This will enable those beneficiaries to have access to those funds without going through the probate process.
- Create a revocable living trust. All of your assets can be put into the trust, which you are entirely in charge of. When you pass, all of the assets will be distributed per your written wishes, just like they are in a will, except there is not probate process. You maintain complete control over the trust and change or cancel it at any time.
Estate planning, drafting wills, and avoiding the probate process are all complex legal issues that require a skilled attorney, like an experienced Peoria IL probate attorney, who is knowledgeable about all of the estate and tax laws which can affect your estate, as well as the financial obligations of your heirs.
Thanks to our friends and contributors from Smith & Weer, P.C. for their insight into probate law.