Most people have heard of the probate process, which is overseen by the Register of Wills, an arm of the Court. Commonly, people understand that probate is something that happens after someone passes away. Unfortunately, fewer people know that it can be a long and complicated process. It can sometimes take months, or even years, to complete.
The probate process can be necessary whether a person dies with or without a will. If someone dies and their will names a person to serve as the personal representative (also called an executor) of their estate, then a probate court will appoint that person. If the will does not name a personal representative, or if there is no will, then a probate court will appoint an administrator.
After the personal representative files a petition with the probate court, any heirs or beneficiaries who have an interest in the estate are notified and have the opportunity to contest the will. The personal representative has control of the estate, which is comprised of all the assets the deceased person has left behind that is not already designated to go to beneficiaries. Real estate, vehicles, bank accounts, and personal property typically fall into this category.
After the personal representative has paid any debts and taxes owed by the deceased person, the personal representative distributes the remaining assets according to the wishes expressed in the will. If there is no will, a default law, called the intestate law, will control distribution of the remaining assets.
A number of factors can cause the probate process to drag on, including waiting out the creditor claim period, dealing with illiquid assets, and navigating the legal process itself. This can be a problem for families who are trying to resolve a loved one’s estate and move on with their lives. It can be especially challenging for families in need who could really benefit from receiving their loved one’s assets sooner rather than later.
In addition to the long period of time it takes to complete the probate process, it is a complex process with many opportunities for mistakes. For example, complicated paperwork can be hard to fill out accurately. Mistakes, such as forgetting to include important information or filing the wrong paperwork, can increase the amount of time and money needed to complete the probate process.
In some instances, people don’t realize they need to open an estate, which can cause problems down the road. For example, let’s say a married person dies and their surviving spouse does not complete the probate process for them. Years later, when the surviving spouse passes away, their children or heirs may need to open two probate estates instead of one. This can create headaches, especially for handling the estate of the first spouse since so much time has passed.
Creating a revocable trust to own your assets while you are still living is a way to avoid the probate process. This reduces unnecessary cost, time, and paperwork.
At DiPietro Law, our team is available to guide you through the probate process if your loved one passes away or help you avoid this process through proactive planning.