THE PROBATE PROCESS
A basic understanding of the “probate “ process is necessary to understand the advantages of trusts. While the term “probate” has more than one meaning, we use the term here to describe the process by which the “probate” court administers the assets of an individual who has died. We will refer to an individual who has died as a “decedent”.
Probate of the assets of a decedent can occur whether that individual has a will or not. If the decedent dies without a will, that individual has left an “intestate” estate. If that individual has died with a valid will in full force and effect, then that individual has left a “testate” estate. In either event, the probate court may be required to be employed to distribute the assets of a decedent.
Irrespective of whether there is will or a trust, there can be circumstances where the assets of a decedent can be distributed without requiring the intervention of the probate court. Common examples include bank accounts or real estate held in the form of joint tenant. Life insurance where a particular individual is named as beneficiary is another example.
In circumstances where the intervention of the probate court is required, the probate process requires no less than two court hearings. The first hearing involves the appointment of an individual or a financial institution as the “personal representative” (i.e. executor or administrator) to administer the assets of the decedent and to distribute those assets to those individuals named in the will of the decedent or, if no will, to the closing living relatives (“heirs”). At least one more hearing will be required for the personal representative to obtain court approval to distribute the assets of the decedent to the beneficiaries under the will or the heirs where there is no will. After the assets have been distributed, the personal representative is discharged by the court.
The length of time ordinarily required to probate the assets of a decedent can be as short as nine months, but realistically, the period runs twelve to eighteen months. During the probate process, there will be a duty by the personal representative to identify all assets, report those assets to the court, identify all debts of the decedent, compromise or pay in full such lawful debts, confirm the identity of all beneficiaries or heirs ( a common occurrence when the named beneficiary has already died), initiate or defend lawsuits when necessary, sell real estate and other assets when necessary.
