Probate is the law of family settlements, with the purpose of it being to eliminate confusion, turmoil, uncertainty, and even arguments that may occur as a result of the death of a patriarch or matriarch in the family, and what should be done with this person’s assets. Probate is generally handled by what’s known as a probate court, which is typically a county-level legislative body designated specifically for dealing with probating and issues of family law, depending on the size of the jurisdiction.
Probate laws are different in every state. This is not a federal government-level issue, not in the United States anyway. Texas probate law may be different from California’s, and California’s differing from, say, Wisconsin’s laws in any number of fine print ways.
Probate is, essentially, the legal proceedings that ensure proper dispersal and allocation of assets after one's death. In simpler terms, the legal process that decides where you or your parent's money and things go when they pass away.
Why Is Probate Important?
Probate is an aspect of financial planning that often goes overlooked and put off throughout a person's lifetime. It’s nothing too uncommon for someone’s whole life to pass by, only for them to realize that they’re nearly 60, 70, or even 80 years old without a proper will. This is a critical portion of estate planning and can, of course, cause ripple effect-type complications after a loved one’s untimely or unexpected death that neither they nor the family were prepared for.Death is a more complicated process than most would like to imagine, and losing a loved one is hard enough to deal with in and of itself. When someone passes away, though, there any many things to consider that must be handled accordingly and preferably promptly to avoid any legal issues, and this is one of the reasons that probate is important in this process.
Debts
Some people do pass away with debts, but what do you do about a debt owed if the debtor is gone? No, your family won’t be liable for them, but your inheritance might. Outstanding balances in the deceased’s name will need to be paid off, but not by you or any other descendant of your ancestor in most cases. Debts become owed by the estate. This means that whatever is owed should and can be garnished from the value of the estate’s assets as well as available liquidity upon time of death.
If the balance is high enough and liquid assets won’t cover it, the executor (attorney or appointed family member in charge of overseeing both the assets and their distribution) of the estate is to attempt to pay them off with the sale of assets such as a home, property, vehicles, or other possessions.
Probate can help in this process. Having legal backing, insight, and guidance from people who are experts in this can be a tremendous asset in what is often a very troubling time as it is.
Is Probate Really Necessary?
Each state will have specific laws governing how the probating of one’s estate is carried out in the typical case of one containing a will, as well as those who pass away without a will, which is known as “intestate succession.” This process plays a critical role in assuring that someone’s property, assets, liquidity, and even liabilities are all handled properly and allocated to the correct parties as should be specified in the deceased’s will, assuming there was one.This can be a complex process, especially depending upon how well-done, or done at all, the will was in each scenario. Wills and probate can also get complex when the deceased has many children, relatives, assets, or debts as well. Promises and statements made not in writing can cause issues, too. For instance, telling your great grandson that he can have something when you die but not putting that in writing leads to family arguments. Legislation solves arguments, because the law can’t be argued with. That’s where probate comes in.
Probate isn’t required in most cases, but it is often necessary. Probate can be avoided by setting up a living trust, which automatically transfers your assets to a selected beneficiary upon the death of the originator. This is what would be called good planning, especially for those with an only child, just like writing a will would be for those with multiple descendants.
