What is Probate?
Updated: Feb 27, 2022
What is it? Probate is the legal process where a person’s final affairs are settled and their property distributed. This can happen through the use of a will or intestacy (if they died without a valid will).
How does it work? Following a person’s death (frequently referred to as the “decedent”), that persons executor, heirs or creditors can file paperwork with the probate court for the appointment of a personal representative (Executor or Administrator) for the decedent’s estate. Probate is a court-supervised procedure to validate the legal sufficiency of the will (prove the will is valid and conforms to all legal requirements) so that it can be honored. If the court accepts the will, then the court will officially appoint the executor named in the will, thus giving him/her the legal power to act on behalf of the testator’s estate to honor the testator’s wishes. If there is no valid will, then the probate court will appoint an Administrator, and the deceased’s assets will be distributed according to that jurisdiction’s intestacy laws. Virginia’s intestacy law is available here: Va. Code § 64.2-200. New Hampshire’s intestacy law is available here: NH RSA § 561:1..
What are the pitfalls of probate? Some common reasons you may hear people complaining about probate are:
The time: The probate process can take anywhere from a few months to more than a year. If an heir chooses to contest (fight) the will, it can take even longer.
Delay: While similar to time, there can be a delay between a decedent’s death and when the court is able to appoint a personal representative where the decedent's property may not be able to be used.
The cost: The probate process is not free. Additional legal costs may arise if the will is contested.
The lack of privacy: The probate process takes place in a public court and almost everything becomes a matter of public record. Anyone with the inclination can find out what the deceased person left behind and how much each beneficiary received just by going to the courthouse.
How do I minimize probate pitfalls? To create an enforceable estate plan, minimize taxes, and avoid probate pitfalls, you probably want to employ the services of a qualified estate planning attorney in your area.Some assets may be able to avoid probate. These assets may include: property held in a trust, jointly-held property (e.g. a home you own with your spouse), insurance policy death benefits with a named beneficiary, assets in a payable-on-death account (e.g. a bank checking or savings account), or retirement accounts with a named beneficiary. Consult with an attorney for advice on your specific situation.