What is Probate?
Probate is the court process to enable a court-appointed fiduciary (Executor or Administrator) to handle the following:
- Collect assets
- Identify beneficiaries
- Identify creditors
- Pay creditors
- Distribute net estate
When is Probate necessary?
Probate is necessary (typically) only when a person dies having had sole ownership of an asset without a beneficiary designation (examples: vehicle, savings account, etc.)
If I'm already someone's Power of Attorney, don't I already have the authority to do these things?
No - a Power of Attorney is no longer valid when someone passes away. You must get court authority to handle their affairs.
What is required of an Executor?
- After the Executor's appointment, within 60 days they must file an inventory of the deceased person's property with the court.
- They must then file Periodic Reports setting forth how much money and property they have received/distributed as the Executor, along with a Final Report of Settlement at the time the estate is closed.
- Depending on the amount of the estate assets, an Executor will need to obtain a surety bond (unless either the Judge or the Will waives same).
Probate Avoidance Strategies:
- Joint ownership
- Contracts with beneficiary designations (e.g. life insurance, annuities, retirement plans)
- P.O.D. and T.O.D. accounts