Probate can be defined as the judicial process through which the validity of a will is established. Upon validation, it is accepted by the court as a public document. A valid will is regarded as the last true testament of the deceased, and it usually contains instructions on how the deceased person’s property should be devolved. A will is drafted for the benefit of the deceased person’s beneficiaries. Most people are not conversant with the law of trusts, wills or probate. It is important that you understand the basics of probate so as to avoid being a victim of misconceptions. Below are a few common misconceptions that surround probate.
1- The state acquires your property if you die without a will.
People write wills for different reasons. The fear that the state will take away your family’s inheritance should not be one of those reasons. In the event you die without a will, probate laws applicable in your state of residence apply. Every state has its own set of laws regarding probate. The legal term used to describe people who die without having executed a will is intestate. Your children and wife are usually first in line to inherit your property. Your assets can only go to the state if your relatives are not found. This process is known as escheat. Writing a will enables you to decide what happens to your property when you die.
2- Probate takes years to end.
Most estates do not take many years to devolve. The only delay is the time allocated by state law to creditors to make and file claims against your estate. This period given to creditors varies from one state to the other. Once the period is over, and all other legal formalities are satisfied, the estate is closed. Normally, it takes a few months to put everything in order. Other things that make probate cases drag in court include family fights and instances where the estate of the deceased is large.
3- The cost of the process will finish up all the assets.
There are many misleading stories about the cost of probate. If you believe in these stories, you might think that your people will not get anything once the process is done. Most estates do not require probate; if they do, it will only cost a small percentage of the estate. However, if the will is contested, the cost of probate can go up dramatically. Secondly, it is important to find a lawyer who charges reasonably for his or fees in order to cut down costs.
4- There is no requirement to leave my spouse anything.
Some couples opt not to leave any significant assets to each other. This is a common thing if both own assets independently. They might come to the agreement that each will leave their assets to their children from previous relationships or marriages. For this arrangement to be enforceable, it is important that you discuss the decision with your lawyer. The law requires you to sign waivers that curtail the surviving spouse from taking against the will.
5- As the first born child, I should be the executor of my parent’s estate.
The fact that you are the eldest child, does not guarantee you the post of an executor. If the deceased named a particular person as an executor, the court will work with that person unless there is a valid reason not to. If you feel you should be an executor of your parent’s estate, consider requesting them to appoint you as such. Parents making a will should appoint their most conscientious and responsible child to be the executor. Avoid appointing all your children as co-executors unless you truly feel it is in the best of their interests.
6- Only sick or rich people need wills.
This is one of the most common misconceptions of probate. If you are concerned about your family in the event of your demise, you need to have a will. If you want to avoid destructive family conflicts it is important that you write a will. These issues are not peculiar to the wealthy, ill and elderly.
7- I can tell people exactly what I want.
Oral wills are allowed in some states, but they are not a substitute for written wills. Enforcing an oral will is complicated and it can only be done under specific circumstances.
8- A will serves all the needs of my estate.
A will is an important document for estate planning. It is, however, not the only tool you require to set things straight. It only takes effect upon the death of its maker.
