What is Probate?

Probate is the legal process through which a deceased person's estate is properly distributed to heirs and designated beneficiaries after the payment(s) of any taxes and/or debt(s) are settled. In general, property which requires probate is distributed according to the terms of the decedent's Last Will and Testament, if a Will exists.  If no Will exists, then generally a decedent's estate is distributed according to the intestate laws of the state where the decedent had his/her residence.  If there are minor children who are beneficiaries of a decedent's estate, and if a decedent dies without a Will (or without a valid Will), then the cost of probate may be astronomical due to the extra hoops that may have to be jumped through in the probate process because of the minor children and/or because of adult beneficiaries who cannot agree amongst themselves to have an independent administration. These problems occur because minor children do not have the capacity to sign agreeing to an independent administration of a probate estate and/or the adult beneficiaries of an estate refuse to sign such an agreement. Therefore, at the minimum, everyone should have a Will which names an independent executor and which creates a pickup trust for the benefit of a minor child.  This type of trust holds any distributions that may be made to a minor child (or incapacitated individual) in trust until the child reaches a certain age, such as 25 years of age (or the incapacitated individual regains his/her capacity).

The process of probate may be very stressful.  This is why we try and make it as easy as possible for the client. We do this by creating all the documents required in a probate and making sure all deadlines are met with court approval.  We also obtain receipt and releases to release our client from any liability action that may be brought at a later date by the beneficiaries in the probate estate.  If a release is not obtained in a probate estate a beneficiary has four years from the date an executor qualifies to sue such executor for wrongdoing.  This means if an executor makes a distribution in an estate to a beneficiary without first receiving a release, then such executor is giving such beneficiary the money to sue the executor.  If a beneficiary refuses to sign a release which releases the executor from all liability, then we file a declaratory judgment action in court which requests the judge to release the executor from all liability.  Such an action in court will cost the estate more money in legal fees and costs which means the beneficiaries of the estate would receive less money as a distribution from the estate.  However, the peace of mind it gives the executor is worth it.  If you wish to discuss the process of probate in more detail please contact our firm and request a free consultation regarding the same.