Some people are under the impression that assets are quickly distributed to the heirs when someone leaves behind a last will and testament. The thinking is that you name an executor or executrix when you create a will, and this person carries out your wishes. That sounds easy, doesn’t it?
If that is what you are thinking, then you would be incorrect. While it is true that you should name an executor/rix when creating your will, this representative will not have power or authority to settle your estate unless and until he or she submits the will to the probate court. Without the probate court acceptance of the will, it is a useless piece of paper.
The admission of the will to probate starts a process. The probate court legally appoints the executor/rix and supervises the administration of the estate while the executor handles the specific tasks that must be completed to make your wishes a reality. Interested parties can come forward if they wanted to challenge the will’s validity. While most wills are valid, there are some instances when challenges can be successful, as where the will is a product of fraud or undue coercion, is improper executed, or made by a person who lacks the requisite mental capacity to make a will.
Probate also provides creditors with an opportunity to seek satisfaction from the estate. If you pass away with debts and assets the creditors have the right to be paid before the estate is distributed to heirs.
Distributing the inheritances that you instructed in your will is not as simple as it may seem to be on the surface. There can be many different forms of property that must be cataloged, appraised, and liquidated so that the assets can be distributed in the appropriate percentages. Businesses must be managed or shut down. Real estate must be cared for. The executor must file an inventory of the estate assets and get approval. Then he prepares and files an accounting that documents every penny received and every cent paid out to creditors, for expenses, or to heirs, that must also be approved.
Only after all this is done, and sometimes more, can the executor pay the heirs. When you think about all the things that must take place during the probate process you can see that it can take a considerable amount of time. This will delay the distributions to heirs, even if the estate is well funded.
In many cases the heirs to the estate have immediate financial need. A long, drawn out probate process can create significant financial difficulties for these individuals. In addition to the time involved, the inheritances are reduced by the expenses that are incurred during the probate process. And it is all open to the public. Indeed, in some counties the probate proceedings are open to public view over the internet.
For these reasons many people decide to look for ways to transfer money and property to their loved ones outside of probate. This is possible and quite common. There are a number of different ways to go about it. We will examine probate avoidance strategies in future posts, and we urge you to bookmark this blog so you can continually build on your estate planning knowledge. Or if you wish, contact The Zimmer Law Firm LLC at www.zimmerlawfirm.com for more information.