Probate is often the term used to describe the court assisted process of transferring assets after someone has died, notifying creditors, and settling the deceased person’s estate. This is technically correct. However, the Probate section of the law covers many additional topics or subsets of law. Each area can be a specialty in and of itself. The areas of law that fall under the term are:
This is the typical scenario people associate with the word “probate”. Someone has died and an accounting for all property of the decedent must be made and notice to creditors must be sent or published. A probate estate is need if there is a probate trigger. A probate trigger is an asset that is not already set to be transferred to the next owner and therefore someone needs court approval to sign it over or collect it. Typical probate triggers are real estate, investment accounts that do not have a named beneficiary, and life insurance that is not left to a live beneficiary.
A probate estate is opened by filing an application with the court. There may or may not be a Will involved. The judge will appoint a person (personal representative). This is the person who has the legal authority to sign documents transferring property, collect investments, etc. If there is a Will, the first person in line to be appointed at personal representative is the person nominated in the Will. If there is no Will, then any person can ask to be appointed, however it is usually a family member or a bank with a trust department.
One of the first official duties of the personal representative is to file an inventory listing the names and addresses of the heirs or beneficiaries. The inventory is a comprehensive listing of all of the assets the deceased had at the time of death, including assets that do not pass under probate, such as life insurance with a living beneficiary, jointly owned property, and investment accounts that already have designated beneficiaries. The inventory is a public document that can be searched online. This renders beneficiaries and heirs susceptible to identity theft or exploitation and is the primary reason that Letsch Law Firm recommends avoiding the probate process, if at all possible. A revocable living trust is the most common tool used to avoid probate and still reach your goal of passing your assets on to the next generation.
To learn more about Wills, Trusts, Powers of Attorney, or Living Wills, visit our Estate Planning page.
To learn more about Guardianships or Conservatorships, visit our Elder Law page.
Most clients experience a great sense of relief once they sign documents that put their estate and other affairs in order. Please contact our experienced probate attorneys to make an appointment and learn if you qualify for a reduced priced will — (515) 986-2810.