The legal process of probate is something that you should explore when you are trying to understand how you should plan your estate. This process is a factor if you are in direct personal possession of property at the time of your passing, and this would be true even if you have a last will.
Legal Protections
Legal protections do not vanish when someone passes away. For example, let’s say that you lent a person $100,000, and you had a contract with this individual that required him to pay you back at a certain rate of interest over a prescribed period of time. If he were to pass away before he paid you, would you want to be paid out of the assets that comprise his estate? This is part of what the probate process is all about.
If a will is used as an asset transfer vehicle, it is admitted to probate. The executor or personal representative handles the estate administration tasks under the supervision of the probate court. Under state laws, the executor would be required to notify creditors, and they would be given a certain period of time to come forward seeking payment from the assets in the estate. Final taxes would also be paid during the probate process.
Another protection that probate provides is the assurance of a validly executed will.
To provide another example, let’s say that you know your father included you in his will at one point in time. After he passes away, the domestic partner who moved in months before he died presented a different will to the probate court. You are disinherited in this will, and you are certain that the will was fraudulent.
As part of the probate process, you would be able to come forward to contest the will, and you could present an argument before the court.
Closing an Estate
Assuming everything is in order, the executor would identify and inventory the assets of the estate during probate. They would ultimately be prepared for distribution to the heirs named in the last will. After the court closes the estate, the property could be transferred to the inheritors.
The Condition of Intestacy
We should also point out that the probate process would enter the picture if there were no will at all. This situation is called intestacy. Under these circumstances, the court would appoint a personal representative, and final debts would be paid. In the end, the intestate property would be distributed according to the intestate succession laws of the state of North Carolina or Kentucky, depending on which state the probate is in.
Legal Assistance
If you are going to use a last will to state your wishes regarding the way that you want your assets to be distributed after you pass away, you should certainly take the probate process into account. If you do choose this route of estate planning, your estate planning attorney can also help your executor during the estate administration process.
This can be of great assistance, especially if the executor does not have any particular experience navigating through the probate process.
Get In Touch!
In this blog post we have provided some general information about the probate process. When you start to get serious about your estate planning efforts, you should educate yourself completely, because there are many facets to take into consideration.
A will may be the best choice for you, but you have other options. Even if you are not extraordinarily wealthy, a living trust can provide a host of different benefits.
Many of our clients are concerned about their loved ones spending their inheritances too quickly or about protecting their legacy in case a child gets divorced. You can address this type of thing through the creation of a revocable living trust.
With a living trust, the trustee that you name in the trust declaration could be empowered to manage the assets in the trust after your passing. You would not have to worry about a beneficiary or beneficiaries making bad decisions.
If you want to, you could instruct the trustee to distribute limited assets over an extended period of time so that your loved ones have resources available to them over the long haul.
Our firm can help if you would like to discuss your estate planning options with a licensed professional. We offer no obligation consultations, and you can give us a call at (704) 944-3245 (Charlotte, North Carolina) or (606) 324-5516 (Ashland, Kentucky) or send us a brief message through our contact page to set up an appointment.
John’s practice focuses on the use of Wills and Living Trusts in Estate Planning to help individuals protect their families and preserve their legacies after their deaths, but his practice also focuses on the critical issues of protecting individuals with dementia or other diminished capacity, assisting individuals in qualifying for Medicaid and other government benefits to offset the costs of long-term care, and providing special needs planning.
John is admitted to practice law in North Carolina, South Carolina, Kentucky, and Ohio, and he is accredited by the Department of Veterans Affairs.
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