Probate

Probate is the process of providing an orderly transfer of title for the decedent’s property to those who are entitled to receive it. The Probate Court oversees the estate process to ensure the decedent’s wishes are followed as stated in the Last Will & Testament.

Yes, avoiding probate is possible. Whether your estate avoids it altogether depends on how your estate is planned. The way assets are titled or how property is held makes a big difference once the owner passes.

The person you nominate as executor in your Last Will & Testament will be responsible for carrying out your wishes. This person has to apply to the Probate Court to be officially appointed to this position. If a person does not have a Will then someone needs to be appointed by the Court as the administrator of your estate to manage the process.

The process is started by filing certain documents with the Probate Court to open up the estate, to provide certain notices to those parties entitled to notice, and to appoint a fiduciary. Certain documents are required to be filed at specific times to show the Court what is going on with the estate.

The options for avoiding probate depend on the assets you own. Real estate can be titled with rights of survivorship, automobiles can be titled with transfer on death beneficiaries, and bank accounts can be titled with payable on death beneficiaries to transfer these assets outside of probate.

Your Will is a legal document where you state how you want your property to be distributed, who you want to carry out these wishes, and if you have minor children you may create a trust and/or nominate guardians for your children.

It is best to meet with an attorney when creating and finalizing your Will. You want to make sure your wishes are correctly taken down and understand how the law in your State works to make sure your wishes can be carried out according to the terms of your Will.

If you die without a Will your personal property is distributed according to the descent and distribution statute of the state where the decedent was living at the time of death.

You can nominate a person to become guardian of your children in your will. There is no guarantee that the person nominated will become the guardian. However, when a court is appointing guardians of minor children they will look for guidance from your Will as to who you thought would be appropriate guardians for your children.