The process of transferring ownership from a decedent to whomever the new owner is. The problems with probate usually do not occur on the death of the first spouse, they occur on the death of the surviving spouse. Probate can be expensive, time consuming and it is a public venue. Their are basically 4 ways to avoid probate: 1)Joint Tenancy; 2)Giving things away although their are limitations to the amount and/or value; 3)Having a trust, which may be expensive to setup and absolutely needs to be funded properly in order to function in the correct way; 4)A properly “named beneficiary”.
In some states, after a person residing in that state has died without a valid will or trust, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple’s property as community property or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent’s property, then it is usually necessary to “probate the estate”, whether or not the decedent had a valid will. A court having jurisdiction of the decedent’s estate (often called a “probate court”) supervises probate, in order to ensure the decedent’s property is distributed according to the direction of his will and the laws of the state.
The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executor’s most common task is the marshalling of the decedent’s assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent’s estate can appoint one. Traditionally, the representative of an intestate estate is called an administrator. The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo.) The generic term for executors or administrators is personal representative.
Some of the decedent’s property may never enter probate because it passes to another person contractually, such as an insurance policy or bank account that names a beneficiary or is owned as “payable on death”, and property (usually, again, a bank account) legally held as “jointly owned with right of survivorship”. Property held in a living trust avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate. Properly designated beneficiaries in annuities and IRA’s also avoid probate.
The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent’s property.
Next, the personal representative pays any debts and taxes that must be paid.
Finally, the personal representative distributes the remaining property to the decedent’s beneficiaries, either as instructed in the will, or per the intestacy laws of the state.
Throughout this process there may be disputes. Anyone may make a claim on the estate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property. [1]
The personal representative must understand and abide by the fiduciary duties (e.g., duty to keep monies in interest bearing account, duty to treat all beneficiaries equally, etc.) placed on him or her. Disregard of the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
Probate generally lasts 7 to 10 months, occasionally over a year before all the property can be distributed, and incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his real property (house, etc.,) from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, the property the trust owns. As probate is a public process, a living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax.
It must be noted that avoiding probate does not necessarily mean estate taxes have also been avoided, as the laws imposing the federal estate tax have been modified to include within the definition of the person’s taxable estate, property held in a living trust, life insurance, “payable on death” or “transfer on death” financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate. Generally, to avoid an estate/inheritance tax, a person must give it away irrevocably or leave it to a qualified charity. However the use of credit shelter trusts (also called AB trusts) can allow a married couple to preserve both unified tax credits, allowing up to twice the total estate to pass to heirs without estate tax. This may reduce or eliminate the total tax the couple would have otherwise paid.