Probate is a legal process created long ago to protect the interests of a person after their death. It establishes a documented, validated, formal court procedure to establish title (ownership) and transfer ownership of a deceased person’s assets, as described in a recent article “Probate still gets lots of questions” from the Pauls Valley Democrat.
Probate accomplishes several goals. One is to fulfill the intentions of the decedent and follow the directions expressed in a written valid will. Another is to prevent the improper acquisition of assets by self-serving heirs or claimants. It provides a formal process to capture and control assets and document them. It also provides for the distribution of all assets in the estate, as directed by the decedent.
A petition is typically filed with the circuit court in the county where the person resided at death. It confirms the jurisdiction of the court and defines the scope of the estate. This includes:
- Fact of death and name of the decedent, included in the original copy of the death certificate
- Residency of the decedent
- Whether there was a will (original will is filed with the court)
- Name of the executor or personal representative
- Names of all potential heirs
- The approximate size and scope of the estate
After documents are filed, a hearing takes place and formal notice is provided to all known heirs and to the public. This is where probate becomes problematic. Any known heirs who are notified may not always be named in the will and could bring claims against the estate. Any person who wishes to find out the size and scope of the estate may do so. This often brings creditors and predators into the process.
While the traditional goals of providing an open and fair opportunity to gain notice of the person’s death may have worked well in the past, today they often provide an opportunity for disgruntled relatives and thieves.
For this reason, many families prefer to take some or all assets from the estate and place them within the protection of a revocable living trust. Assets placed in a trust do not go through probate and will not be mentioned in a will. The trustee is charged with administering and distributing assets in a trust. There is no court involvement. Trusts may also be used during a person’s lifetime, as well as after they have died.
Other assets not governed by probate are those with beneficiary designations. Insurance policies, retirement accounts and investment accounts are among the types of assets distributed directly to the beneficiary without court involvement.
An estate planning attorney takes the best of these old English laws and blends them with our modern realities and current tax laws.
Reference: Pauls Valley Democrat (June 3, 2021) “Probate still gets lots of questions”