What is the purpose of Probate?
Probate is the judicial process of aggregating a deceased person’s property, accounting for that property, appointing a fiduciary to administer the property, and distributing the property pursuant to the law or the Last Will & Testament.
What does the Probate Court do?
Probate Court is the court that oversees the Probate process. Probate court, in addition to estates, handles a variety of other matters to include Guardianships, Name Changes, Mental Health Orders, and much more.
Is Probate Required when someone dies?
Maybe. Probate exists to ensure the deceased person’s property is properly accounted for and distributed. If there were no “probatable” property then the Probate process would generally not be required.
Can you withdraw Money from a deceased person’s bank account?
Likely not. If the account was solely owned by a deceased person then the account would need to go through the Probate process to ultimately be transferred. If the account had a transfer on death beneficiary or joint owner it may transfer immediately upon death.
What happens to a deceased person’s bank account?
It depends on how the account is structured. If the account is a non-business, non-trust, and solely owned account without a beneficiary listed then the account must pass through probate.
Should Probate be avoided?
Generally speaking, yes. Probate does have associated costs and fees so avoidance is generally recommended. There is, however, instances where an attorney may advise a client to utilize the Probate process for a particular planning goal.
How can Probate be avoided?
There are generally three ways to avoid probate. (1) Utilize a Trust, (2) place named beneficiaries on all accounts, (3) structure property to have joint owners with rights of survivorship.
Is a will sufficient to avoid probate?
Generally no, as a Last Will & Testament exists to go through the Probate process. A living Trust is normally what is drafted to avoid the Probate process entirely.
What property is subject to Probate?
All assets owned by a person at death are subject to Probate unless the assets have been structured to avoid Probate.
What assets avoid Probate?
Any asset that has a beneficiary designation is owned in Trust, or any asset jointly owned with rights of survivorship.
Can a Fiduciary refuse to pay an estate beneficiary?
No. A fiduciary is obligated to ensure all beneficiaries receive their due inheritance.