Death is already a stressful time for surviving family, and sometimes dealing with the estate only serves to add to that stress. The goal of your Yeti Law Legal Sherpa® is to guide you and provide assistance without adding to your stress during this difficult time. One topic that commonly causes confusion is the question of probate.
Probate simply describes a legal process intended to validate or “prove” a Will. Proof meaning that the Will is duly recognized as the uncontested and legally valid last Will and testament. Probate is often (though not always) a first step in the process of executing a Will.
Those faced with the death of a loved one and the administration of a Will commonly ask: “is probate necessary?” While it’s not necessary in all cases, it’s often difficult to know at the onset. It’s really a question best answered by meeting with a trusted expert like your Legal Sherpa®.
When is Probate is Necessary?
In some circumstance, probate isn’t required. Some assets do not require probate in order to transfer ownership – assets such as jointly held land, or registered savings and investment accounts with named beneficiaries, or life insurance. In these and other cases a death certificate is sometimes all that’s required.
In other cases, probate is mandatory. Probate may be required in the following scenarios:
- Probate is sometimes a required and necessary process to transfer ownership of land or other property from the name of the deceased.
- Probate acts as an assurance for banks, brokers, and land registrars that they are receiving legal directives. It’s meant to dispel any concern that those institutions may have with regard to executing the terms of the Will.
- Probate offers clear and decisive legal proof that the executor has the right to act on behalf of the deceased.
- Probate can act to protect the estate by imposing strict time limits for claims filed against the estate.
There are times when it may be beneficial to avoid probate, which is possible to account for in advance with proper Will and estate planning by a knowledgeable estate lawyer.
Probate can be a lengthy and expensive process; it can take months, sometimes years, and in the process ties up property and assets, even if the Will isn’t being contested. There are also fees associated with probate that can drive up costs. Additionally, a Will in probate will become a public document, accessible to anyone inclined to look for it. Understandably, some may feel that privacy is a more pressing concern than probate.
Sometimes a multi-layered approach is called for. It’s possible to draft multiple Wills so that you can include assets that don’t need to be probated into specific Wills. Speak to your Legal Sherpa® to design an approach that is right for you.
Appraisal of Assets
For estates entering probate, the personal property of an estate must be inventoried and assigned a monetary value. Asset appraisal is a mandatory step in the probate process. All assets, including cash assets such as bank accounts and registered investment accounts, must be appraised alongside non-cash assets such as real estate, vehicles, jewelry, and other property.
There are a few different reasons why appraisals are required. One important reason is taxation. Only once the overall value of the estate has been identified can the appropriate tax be applied. Also, only by assessing the value of all property and assets can a correct and equal division of assets be calculated for distribution to heirs or beneficiaries.
But assessment can be a difficult process. Emotional connection to property or assets can make them difficult to assess fairly, which is why it’s best to seek the assistance of an experienced professional, like your Legal Sherpa®, when you are faced with making appraisals for probate.