Probate is defined as the “legal right to deal with someone's property, money, and possessions (their 'estate') when they die.” But what does that really mean? Who gets the legal right to deal with property and how do they go about administering it? Does making a Will mean that a person will skip probate, or will a person’s loved ones still wind up in probate court?
Since probate is one of the most confusing terms for people who choose to make a DIY Will, we thought it would be helpful to explain what probate means and define the legal terms you are likely to confront when drafting your online Will with FastWill.
What is the Probate Process?
Probate is the legal process through which a deceased person's estate is administered and distributed according to their will or the laws of intestacy if there is no Will. The probate process involves several steps to validate the Will, settle debts, pay taxes, and distribute assets to beneficiaries. You’ve probably heard people say that you should do everything you can to avoid probate. Since Wills are administered by the probate court, that suggestion is meant to point you away from writing a Will and instead creating a Trust.
But should you really try to avoid probate by creating a Living Trust? While it’s true that a Trust means your family will skip probate, a Trust is rarely necessary for most people. According to the American Bar Association, the group that regulates the legal profession, “Most probate proceedings are neither expensive nor prolonged, which is contrary to the claims of many vendors selling living trust and other products.”
At FastWill we are not trying to convince you to create a Trust. The reality is that most states have greatly streamlined their probate processes for those who have a Will. While a Trust would avoid probate, it would still be expensive to set up because you would need to transfer assets into the Trust and then hire a Trustee.
The bottom line is this: if you aren’t extremely wealthy, there is no need to “avoid probate.” When you are drafting an online Will, you should instead focus on writing a Will that sets forth your wishes in a way that minimizes conflict.
How to Write an Online Will That Makes Probate Easy
Why is it helpful to have a Will during the probate process? Because the court will automatically follow your instructions. Here are some tips for writing a Will that streamlines the probate process for your loved ones:
Tip No. 1: A Clear Distribution of Assets
A Will allows you to specify how you want your assets to be distributed after your death. Without a Will, the distribution of your estate will be left to your state’s intestacy laws, which may not align with your wishes. A clear and legally binding Will ensures that your assets are distributed according to your intentions, minimizing conflicts and confusion among your heirs.
Tip No. 2: Appointment of an Executor
In a Will, you will name an executor who will be responsible for carrying out your wishes and managing the probate process. The executor acts as the personal representative of your estate and handles tasks such as gathering assets, paying debts, and distributing property. By designating an executor in your Will, you have control over who will handle these important responsibilities.
Tip No. 3: Guardianship for Minor Children
If you have minor children, a Will allows you to designate a guardian to care for them in the event of your death. Without a Will, the court will determine who will assume guardianship. The court will have a strong presumption that the child’s other parent is the best person to care for the child in your absence. If that person has also passed away, though, you’ll want to make sure the court knows your preferences. By including your choice of guardian in your Will, you can ensure that your children will be cared for by someone you trust.
Tip No. 3: Minimization of Family Disputes
The process of writing your Will should help alleviate family disputes that so often crop up after a person passes away. The probate process can sometimes lead to disputes among family members, especially if there is no clear directive on asset distribution. A well-drafted Will can help minimize these conflicts by providing explicit instructions and eliminating ambiguity. It can serve as evidence of your intentions, reducing the likelihood of disputes arising during probate. Some people even elect to discuss their Will with their loved ones, which minimizes the chances of surprise and hurt feelings that can lead to Will disputes.
What Does the Probate Court Actually Do?
Now that you know what Probate is and how to write a DIY Will, let’s talk about what happens at probate court. When someone dies, the executor of the estate, a lawyer, or a family member must inform the court of the person’s death. They must give the court a copy of the death certificate. This begins the process of probating an estate.
The second step is for the Will to be validated by the court. All this means is that the court will look to see if the Will was correctly signed, dated, and witnessed (if required) in the appropriate manner. If all of the details are correct, the court will declare the Will valid. When you use FastWill to make a DIY Will, you’ll have confidence that the formalities are completely in accordance with the law.
The next step is for the judge to officially appoint the person your Will named as executor to manage your estate. The executor then starts the process of settling the estate. Once there is an executor, the estate will post a bond. A bond protects beneficiaries just in case errors are made during the process. In many instances, bonds aren’t necessary, because some states waive posting a bond if your executor is a beneficiary. You can also use FastWill to waive the posting of a bond by including such a provision in your Will.
Key Terms About Probate
Here are some key terms and definitions related to probate:
Decedent: The person who has passed away, also referred to as the deceased or the testator/testatrix (if there is a Will).
Executor/Personal Representative: The individual or entity named in the Will to carry out the instructions of the deceased and administer the estate. If there is no Will, the court appoints an administrator.
Intestate: When a person dies without a valid Will, they are said to have died intestate. In such cases, state laws determine how the deceased person's assets will be distributed among their heirs.
Letters Testamentary/Letters of Administration: These are legal documents issued by the court that authorize the executor or administrator to act on behalf of the estate. They grant the executor or administrator the authority to collect and distribute assets, settle debts, and fulfill other responsibilities.
Probate Court: The court that oversees the probate process. It validates the Will (if there is one), appoints the executor or administrator, and provides supervision throughout the administration of the estate.
Probate Assets: Assets owned solely by the deceased that require probate to transfer ownership to the beneficiaries. Examples include real estate, bank accounts, vehicles, and personal belongings.
Non-Probate Assets: Assets that pass directly to beneficiaries without going through probate. These may include assets held in a trust, jointly owned property with rights of survivorship, life insurance policies with named beneficiaries, and retirement accounts with designated beneficiaries. Just to be clear, non-probate assets can’t be named in a Will.
Notice to Creditors: A requirement in probate where the executor or administrator must provide notice to potential creditors of a person’s death. This gives creditors an opportunity to make a claim against the estate for any outstanding debts.
Final Distribution: Once all debts, taxes, and expenses have been paid, and the court approves the accounting, the remaining assets are distributed to the beneficiaries according to the terms of the Will or the laws of intestacy if the person died without a Will.
It's important to note that the probate process and its specific requirements can vary by jurisdiction. FastWill is designed to help ensure that you write a Will that is tailored to the requirements of state law.
