Probate is a legal term referring to the official “proving” of a Will. It also refers to the formal process by which an Executor or Administrator is appointed by the Register of Wills Office to oversee the administration of a Decedent’s Estate. The process is usually initiated by obtaining either Letters Testamentary (if there is a Will) or Letters of Administration (if the Decedent died without having made a Will).
The process of administering a Decedent’s Estate is conceptually a simple matter. The Decedent’s assets are determined and collected, his or her debts and death taxes paid, and the remaining asset are then distributed to the individual’s intended beneficiaries. However, on a practical level the administration of a Decedent’s Estate can involve a number of complexities.
Not all of the assets owned by a Decedent are necessarily subject to probate. Often, a Decedent’s assets may be collected and distributed without the necessity of raising an estate and obtaining either Letters Testamentary or Letters of Administration. Such a determination is made based upon an examination of the size of the Decedent’s estate, the type of property and other assets held by estate, and the kind of ownership interest that the Decedent had in the property at the time of his or her death. The probate process also allows for the determination of any creditors who may have valid claims against your estate at your death.
The probate process can have both certain advantages and disadvantages. If your intended beneficiaries do not get along and are likely to bicker or if they are very young, the probate court can be useful in resolving any disputes or disagreements that may arise about the distribution of your assets. Likewise, you will be assured that the actions of your executor will be subject to both the scrutiny and approval of the probate court. However, one of the major disadvantages of probate is its public nature. After your death, your entire estate plan and the value of your estate will be available for public review. In addition, your heirs will incur greater costs and fees then they would have had your assets passed to them outside of probate or pursuant to a revocable living trust. Finally, time may also be a consideration. Though not always, the probate process can be slow and could result in the delayed disbursement of your assets.
Remember, before you decide that avoiding probate court is right for you, it is a good idea to speak to at least one or more attorneys who specialize in estate planning.