Probate......How Does it Really Work?

We’ve all heard of “probate”, and we’ve all heard that it “should be avoided”, but do you really know what it is you are avoiding? And is it really necessary to take steps to avoid the process?

Frequently, when a loved one dies, probate becomes necessary . . . whether an individual dies with or without a Last Will & Testament. Under Indiana law, if a person owns anything in their individual name (with no joint owner or named beneficiary), and those assets exceed $50,000 in total value, that person’s estate MUST be probated. The good news is that the probate process is manageable with the assistance of a qualified attorney, who should help you through every step of the way.

Probate is the legal procedure for administering and distributing an estate (the “probate estate”). The Probate Estate consists of all the assets of a deceased person that were not owned jointly, are not held in a Trust, and do not designate a beneficiary. The Probate Estate is governed by the Last Will & Testament of the deceased. If the deceased did not leave a Last Will & Testament, then the distribution of the probate estate is governed by the law of “intestacy.” All of these factors determine the identities of the estate “beneficiaries” (those who are entitled to receive all or a portion of the deceased’s probate estate).

The process requires that a Petition be filed with the appropriate Court requesting that a case be opened, and a Personal Representative (or Executor) be appointed. The Personal Representative is the individual who is responsible for administering the probate estate (i.e. paying the bills of the decedent, filing and paying any necessary taxes, and distributing the estate to the beneficiaries). Depending upon the circumstances, the Probate process may be “supervised” or “unsupervised” by the Court. Likewise, every county in Indiana has local rules that may impact the procedures necessary for the probate process. Your probate attorney can assist in determining the proper procedures to follow.

Whether your Estate requires probate or not depends upon your personal Estate Plan. Discuss the pros and cons with your planning attorney to determine whether you deem “probate avoidance” important in your case.

Navigating the probate process can be daunting, but we will be with you every step of the way . . . it’s part of what we do.

Hunter Law Office, PC helps families protect their assets against loss from the unforeseen (and foreseen) events in life that inevitably take us off course. We are unique in that our practice is focused on each individual client . . . we design a plan around you and your family . . . because that’s what Estate Planning is supposed to be!