Pro­bate

When a loved one passes away with just a will, or no estate plan at all, their fam­i­lies have to put the estate through a process called “probate.”

Pro­bate is the court-managed pro­ceed­ing where assets are reti­tled and dis­trib­uted accord­ing to the will or the law of intes­tacy (when you pass away with­out a will).  While most of our clients set up their estate via a liv­ing trust, which avoids this process entirely, the major­ity of estates will have to go through probate.

We are often asked to help fam­i­lies go through this process and we meet a lot of new clients for the first time help­ing them with the estate of recently-deceased fam­ily mem­bers.  (Most of those fam­i­lies choose to do com­pre­hen­sive plan­ning with our law firm after hav­ing gone through the process once with a loved one.)

No two pro­bates are ever the same, but all of them involve locat­ing the Will and/or mak­ing a fil­ing with the pro­bate court.  Once the Will has been accepted, an admin­is­tra­tor or admin­is­tra­trix is appointed.  After that, all of the heirs need to be for­mally noticed (in writ­ing), where they will have the oppor­tu­nity to review the Will and make any appro­pri­ate chal­lenges or contests.

Then, the assets have to be gath­ered, debts and taxes have to be paid, and only then can assets can be dis­trib­uted in accor­dance with the Will or intes­tacy.  While many assets will pass through pro­bate, some assets, like life insur­ance and retire­ment accounts, will pass directly to the named ben­e­fi­ciary.  Other kinds of assets, like those held in joint ten­ancy, will pass directly to the other joint ten­ant.  The impor­tant thing to remem­ber is that all of these assets are counted as “part of the estate” for pur­poses of cal­cu­lat­ing whether taxes are due and/or as part of any exist­ing or future Med­ic­aid appli­ca­tions.  You should also know that estates over a cer­tain thresh­old have to be pro­bated, whether they are “tax­able” or not.

As your trusted advi­sor, we can help you nav­i­gate this process, as you pre­pare to move on with life.  If a loved one has recently passed away and you would like a no-cost, con­fi­den­tial con­sul­ta­tion to dis­cuss the next steps, please call our office to sched­ule a meeting.

As always, we’re here to help.