What is probate, and when is it necessary?

End of life planning is a challenging topic for anyone going through it. However, it is necessary for both the individual reaching that stage if they want to protect their assets and make their wishes known.

This planning involves making decisions about what to do with the assets you have accumulated throughout your life, which may include a home, vehicles, a boat, retirement accounts, rental properties and other assets of value. After death, the law provides options for the distribution of those assets.

The extent of the involvement of the court in this process depends on how much planning the individual did before their death and how their estate is structured.

Different ways of passing along assets after death include:

• Through a will
• Via a trust
• By designating beneficiaries

If an individual passes without using any of these tools, the court decides who the assets go to depending on state law.

What is probate?

Probate is a court process intended to manage a deceased person’s assets. The primary goal of probate is to honor the wishes of the deceased, if they left such wishes in an authenticated document, such as a will, and to pass clear title of assets to the correct beneficiaries.

How does the probate process begin?

After a person dies, an attorney for the personal representative petitions the court for administration of the estate. Once the petition is approved, the court issues an order giving the personal representative authority to administer the estate.

After the court gives the personal representative authority to carry out this business, they can:

• Collect and protect estate assets
• Manage any outstanding debts with creditors
• Distribute assets to the appropriate beneficiaries

In most cases, a personal representative goes through probate if the deceased individual did not leave a will, or any documents stating their wishes or left a will. If they did not leave a will or anything documenting their wishes, the state determines who the beneficiaries or heirs are.

Making end-of-life plans or going through the death of a loved one are emotionally tricky situations, and anyone going through it deserves support, guidance and assistance in navigating what can often be a highly complex legal process.