Probate is a court process initiated by the courts to administer the decedent’s estate, i.e. the deceased’s personal property or any identified forms of real estate, to specified beneficiaries. The probate process generally is handled by the local probate courts. Probate law stipulates when the last will and testament must be filed. This guideline also specifies the process for acquiring and executing any remaining property owned by the decedent.
The probate process includes three main parties: the estate executor, the estate trustee, and the individual beneficiaries. Each has specific responsibilities that are determined in the will or trust. The executor is responsible for collecting the taxes from the decedent, paying any outstanding debts, and providing funds to the remaining beneficiaries. The trustee is responsible for collecting the estate assets, distributing the remaining assets, and distributing the remaining estate assets in accordance with the instructions in the will or trust. If an estate administrator cannot accomplish these tasks, they will appoint a “probate officer” to handle the probate proceedings.
There are many ways to avoid probate, including: having the final say in creating and executing the final wishes; using a trust; establishing a living trust; establishing a revocable living trust. When probate cannot be avoided, the next best alternative is to establish a living trust. Although this may seem like extra work, it creates an asset protection structure that is designed to ensure your loved ones are properly taken care of after you die. Also, a living trust is not taxable and, therefore, may be used to defer taxes on the probate proceeds.
Many people who are very concerned about probate are concerned about inheritance taxes. A living trust does not contain any assets that are subject to inheritance tax. Furthermore, if the decedent had both types of accounts, one would not be subjected to probate and the other would be subject to estate tax. This double taxation can be avoided by setting up two payable-on-death accounts. These accounts can be controlled by one individual, through a living trust, or by joint ownership.
Once the final wishes of the decedent are recorded, the executor must review those documents and make a decision about how the distribution of the remaining assets should go. In most states, the executor must divide the assets as described in the Will. However, in some states, an executor may choose to award some assets to the family or heirs, while leaving others for the beneficiary.
The last step in the probate process, once all of the above has been completed, is for the executor to transfer the remaining assets to a court-approved testamentary trust. Usually, this is done at the request of the last living trust holder. This transfer is not required. If it is required, however, it generally happens at the same time as the last will is prepared. It is done through a court order.
Probate can be a very stressful event for everyone involved. Anyone who has dealt with probate for any length of time knows that the legal documents involved, along with the process itself, can be time consuming and confusing. When a last will and testament are prepared in a timely manner, everyone involved can more easily focus on the other details of the settlement or will, said probate attorney Georgia.
An efficient small estate administration will help maximize the proceeds from the settlement or will, and allow beneficiaries to retain significant portions of their deceased’s personal property. The administration of probate is actually quite complex, but it is a necessary part of any large estate. Many people choose to create an estate plan to help take care of probate on their own. However, if the decedent was already planning ahead by having a will in place, it may still be beneficial to have a probate attorney to represent them.