I listen to financial celebrities preach the need to have a Will
Of course, guess what they're selling – "Wills". Go to their website and purchase that "Will". Are they doing you a service or a disservice? You decide.
There is no legal requirement that you have a Will. If you chose not to create a Will or didn't take the time to do so, the law, through the Probate Court, will dictate who gets your assets according to state laws. I have yet to hear the financial community tell you that a Will must be probated. I'll say that again. "A Will must go to Probate".
Think of assets that normally require your signature to access or transfer. For example, a bank account. You can't walk into a bank and ask the teller to hand over your money. You have to sign a withdrawal slip. Then the teller hands you your money.
You can't transfer your house or a piece of land without signing some type of Deed or transfer document. If any of these types of assets are owned by only one person, and that person is dead, PROBATE IS REQUIRED. Most people are under the misconception that after you die, the Will is read and whatever it says happens.
Take Mom's will to the bank and the bank will give you Mom's money. Since Mom is no longer alive to sign the withdrawal slip, the bank will turn over the money in the account, but only to the Personal Representative of the estate, that person who is authorized to act by the Probate Court to sign for Mom's assets.
How does this probate process work?
Let's assume that Mom has taken the time to express her wishes in a Will. Several requests can be made in Will. You can designate who you want to receive your assets and who will be the Personal Representative that will handle the acquisition, liquidation, and distribution of your assets.
You can designate how your funeral will be conducted and how your body will be disposed of. Also, you can designate who will care for your minor children and their assets. The will is admitted to probate, and a Personal Representative is appointed when the court determines that the will is authentic.
That is, it was executed according to your state requirements. Most states require that the person, known as the "Testator or Testatrix", be "of sound mind and disposing memory", and that they know " the objects of their bounty".
In other words, the Court must be satisfied that they know what they're doing and who their heirs are. The actual signing requirements vary from state to state. Generally, having 2 witnesses to the Testator's signature will meet the requirements in most states.
The entire process begins by filing a formal request, known as a Petition, with the Probate Court. This petition names the deceased person and their heirs or interested parties and identifies whether the deceased had prepared a Will.
The petition further requests that the Court recognize or "admit" the Will and appoint the designated Personal Representative. In many cases, the Court will set a date for all interested parties to appear in Court to determine whether the Will should be accepted by the Court and allow the Court to appoint the Personal Representative.
If an heir or interested party were to disagree with the contents of the Will, or disagree with the appointment of the designated Personal representative, the Court will conduct a formal hearing to consider the objections of the heir or interested party.
For example, if Mom decided to disinherit one of her children and said so in her Will, that child would have the right to disagree with Mom's Will. But so long as the Court determines that Mom knew what she was doing and that no one was forcing her to leave that child out of her Will, the Court will admit the Will and allow the rest of the process to continue.
What happens if there is no Will?
If a person has not taken the time to express their wishes in a Will, each state has laws that will dictate how a person's assets will be divided and who will act as the Personal Representative. Each state may have a particular name for these laws but they are generally known as the Laws of Descent and Distribution of the Probate Code.
Generally speaking, your lineal descendants, that is, your children and your spouse will receive your property. If you are not married and have no surviving children, your ancestors will receive your property.
When I say ancestors, I mean your parents, siblings, grandparents, aunts, uncles, and cousins may be entitled to receive your property depending on who survived you. The Probate laws in each state are very specific and orderly in determining who gets your property.
After appointment by the Court, the Personal Representative must identify and collect the assets of the deceased, and notify the Court of the nature and value of the assets. This is done by filing an Inventory.
The Personal Representative is responsible for determining whether the deceased owned any bills or had any debts. If so, those bills and debts must be paid. Only after all bills and debts are paid, can the assets or money be distributed according to the expressed wishes of the Testator?
In general, the entire probate process, from start to finish, will take from six months to two years to complete. The length of time is dictated by the nature of the assets. If the estate consisted only of bank accounts, the process may be quite short or near the six-month time frame.
But if the estate has a business to transfer or liquidate, or a home to sell, it will more than likely take a year or two before distributions can be made to the interested parties. Probate is an expensive process. Studies have shown that Probate will cost from four to ten percent (4% - 10%) of the value of the estate. So, if you have assets worth $100,000, it can cost up to $10,000 to probate your estate...
One other aspect of Probate is that it will make all documentation a part of the public record. Probate records are available for everyone to see. Anyone may access the information about your assets and beneficiaries.
To answer the question, "Does my Will go through Probate?", the answer depends on the nature and the ownership of your assets. If your property is owned by you alone, then your Will must go through Probate.
If you have crafted an appropriate estate plan that takes advantage of alternatives to sole ownership, such as a Living Trust, Lady Bird Deed, or Beneficiary designations, there may not be a need to Probate your Will.
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