After the death of a loved one, their estate may be required to proceed through the probate court. Probate is generally viewed as a negative process. Often, it is considered to be lengthy, costly, and overall quite stressful. However, that is not always the case. Depending on the state, and what estate plans the deceased had prepared, it could proceed relatively smoothly and in a timely fashion. Regardless of how difficult probate may be, what is the actual purpose of it?
1. Confirms the Will Is Legitimate
To be considered valid, a will must be signed by two witnesses over the age of 18. This is generally true of any codicils or other pages added to the will after it is first written. In most cases, a will must be typed to be considered valid, but a handwritten version may be accepted in certain circumstances. Those who are named heirs in a will or should have been named as an heir will be contacted and given the opportunity to challenge the will if necessary.
2. Probate Provides an Orderly Forum for Resolving Disputes
The death of a loved one can be an especially emotional event. It can be easy to get into shouting matches or otherwise handle disputes with family members in a less than calm manner. The probate process allows those who have questions or issues with any part of a will to address them formally with the court. A judge may decide to make a ruling on his or her own, ask that an individual reconsider his or her challenge, or have the matter resolved through mediation.
3. Probate Allows for a Thorough Accounting of an Estate
If a deceased person left a will, the executor named in that will can start inventorying assets and taking care of any outstanding debts. An executor may also be able to put a fair market value on assets for tax purposes. If there is no will, an administrator will be named to handle those duties. Once debt and tax matters are taken care of, remaining assets can then be handed down to beneficiaries.
4. Creditors Have a Contact Person
When a person dies, it may be harder for a creditor to collect on that debt if an estate didn’t go through probate. An executor may also be able to close credit accounts as part of the probate process after a person dies.
5. Probate Allows for the Timely Transfer of Assets
Whether a person has a will or not, the ability to go through probate means that family members and others get their inheritance in a timely manner. If a person has been divorced or has a complex family situation, it may not always be clear who should receive an asset. Divorce lawyers often aim to separate a couple’s assets for this reason, but in some cases, it is not easy to do so. Probate allows a judge to use state law to make sure that whoever has the strongest claim to an asset is the one who gets it.
In general, probate is meant to provide structure and order when it comes to determining how a person’s affairs will be settled. The court will work with the executor when it comes to settling debts, filing income taxes, and addressing property disputes in order to resolve estate matters in a timely manner. If you are struggling with the probate process, consider seeking the counsel of a Memphis estate planning lawyer. The attorney should be familiar with local laws and regulations regarding the process to help you remain compliant with the court.
Thanks to our friends and contributors from Wiseman Bray PLLC for their insight into probate.