5 Common Misconceptions About The Probate Process

5 Common Misconceptions About The Probate Process

November 27, 2017 • Probate

When a loved one dies, many people don’t want to think about the upcoming legal processes, and may be confused when a will goes into probate. While probate is common, many people just do not know what the process involves and, most importantly, how it will affect them as a beneficiary. Here are some facts to clear up misconceptions about probate procedures.

If There Is No Will, the Estate Goes to the State

This isn’t true. If a family member dies without having a will completed, you do not need to worry about losing the estate to the government. State laws exist to determine what happens in these circumstances, and the probate process is where parties work out such issues. Spouses and children stand first to inherit if there is no will; some states divide the estate equally among them. States can take an estate, but only if it finds no relatives.

Probate Can Last Years

State laws have a mandated period, varying in length from four to twelve months, in which people wishing to file a claim on an estate can do so. After that period, the courts can pass the estate to the beneficiaries once the money from the estate has paid all debts and taxes. This can take a few more months, but expect courts to handle these issues within one year of the death. Issues that could prolong this process include family disagreements about distribution, large estates, and continued income the deceased earns.

Probate Can Be Expensive

Not everything will be eligible for the probate process; the deceased is often not the only person named as owner of the assets. Any part of the estate that the deceased owned solely must go through probate, where costs do occur. However, some shortcuts exist, which a lawyer can help you navigate. Costs usually don’t exceed five percent of the estate’s value. Some issues can arise that drive these costs up, including litigation regarding disposition of the estate.

Spouses Must Take What the Will Gives Them

Some spouses choose to not give their spouse anything. Others choose only to give them certain parts of the estate. The surviving spouse has the option in most states to refuse to accept what the will laid out in favor of an “elective share” against the entire estate. What this equates to varies from state to state but could include a year’s salary, a family home, or even one-third of the total estate. Some states increase the amount one party can claim based on the length of the marriage.

Eldest Child Automatically Becomes the Executor

Being the responsible child means nothing in court. The deceased can only appoint this person through his or her will for the court to abide by it, barring any good reason not to do so (such as a felony or disability that precludes fulfilling the requirements). In the event the appointed person can’t fulfill the responsibilities or refuses to do so, the court will select an executor according to state law priorities.

Probate has the potential to be difficult and time consuming, but only in instances where conflict or confusion regarding certain roles exists. The courts have processes in place to ensure probate procedures occur as quickly as possible. Inform yourself on the process and understand where you stand as a beneficiary, so you are prepared in the event of complications.