Your Aging Parents: What is Probate?

Disclaimer: I am not a lawyer and I don’t even play one on TV. This information is shared simply to help you understand the basic process of probate. Please do your own research as to your state laws.

Our parents are aging, and we as their children and perhaps their caregivers should be prepared with information to help them with legal matters like probate now so that their wishes are reflected on their event of their passing. By educating ourselves, we can help aging parents with the probate process, and how to avoid it.

Let me tell you, it is much easier to learn now so that you know the probate process and how to avoid it. You don’t want to find yourself frantically trying to navigate these waters while keeping afloat in the deep sea of grief. 

When my mom passed, there weren’t many legal matters to tend to as her assets just passed to my dad. Once we received the death certificate, we could notify insurance institutions to make a claim. The death certificate also allows the surviving spouse to remove the deceased’s name from bank accounts and titles. Other than the death certificate, not much was needed.

When one loses a spouse, it’s important that their OWN will is then updated, and the deceased spouse’s name is taken off titles and joint accounts. If these things are not updated, their own passing becomes complicated for their children or heirs, and possibly resulting in having to go through the probate process.

If your parent is single, it’s imperative that you educate yourself about the probate process and help your parent organize himself so you know where to find important documents.

Related posts: When You Live Far Away from Aging Parents, Loss of Appetite in the Elderly

What is probate?

Probate is the legal process of settling the estate of a deceased person. An estate is defined as anything that is owned or owed by this person. So, to settle an estate, the deceased’s assets are distributed according to a will (if there is one) and debts (including taxes) are paid.

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Is the probate process always necessary?

No. But, in order to avoid it, several legal options must be in place, which I detail below.

*****IMPORTANT*****

Simply having a will does not necessarily avoid probate.

What is the probate process?

• First, a death certificate is presented to court.
• The court will validate the will by examining to be sure it meets state requirements, as well as making sure it’s signed and dated.
• If an executor is not named in the will, the court will appoint someone to direct the probate process.
• Some states require a bond be paid to ensure that all assets are distributed correctly. (But, you can add a simple statement in the will asking that the bond be waved.)
• Property is appraised and a complete asset inventory is created.
• Debts and taxes are paid.
• Remaining assets are distributed.
• If there is no will, the court will distribute the assets.

How long does probate take?

Generally, the probate process is known to take 6-9 months once the case is opened, as long as there are no challenges.

What are non-probate assets?

Non-probate assets are assets and accounts that name a beneficiary within itself, and are not included as assets in the total inventory. These include accounts like life insurance policies and retirement accounts, etc. Real estate assets held in joint names is also included as non-probate assets.

What assets DO have to go through probate?

• Sole ownership property (real estate, automobiles, etc.)
• Investment property owned with a partner (not legal spouse)
• Property that is not titled (furniture, appliances, etc.)
• Inheritance when a beneficiary has died (Example: If a wife has a will leaving everything to husband, but the husband has died, then probate gets involved.) *This is why it’s important to removed a deceased spouse’s name from titled assets.

How do I avoid probate?

• The easiest way to avoid probate is to reduce the size of the estate. Most states have an exemption level that must be met. Find out what that is in your state and make sure the asset inventory is less than that level.
• If your state allows, designate bank accounts with a beneficiary. This type of account is called a Pay On Death or Transfer on Death account.
• Set up a Revocable Living Trust. Property held in trust is not part of the estate. (I have learned recently that setting up a Living Trust is not just for those with substantial assets as I once thought.)
• Property held jointly (joint ownership) is not part of estate.

Why should I avoid probate?

I don’t know anyone who would choose to go through probate if they could avoid it. The whole probate process is slow and can be very costly (see possible fees below). And, it’s all public. Everything in the probate process is in the public record.

What are probate costs?

• Attorney fees
• Executor compensation (varies with states but can be as much as 5% of estate)
• Creditor notice fees (statements will go in local newspaper)
• Court filing fees
• Probate bond (some states require these)

There is so much information about probate available on the web, with do-it-yourself legal documents etc. Laws vary in every state, so just research the laws of your own area. I was surprised at some laws I found in my state.

We have a responsibility to care for our aging parents, and this includes helping them legal matters like the probate process. I’ve tried to make this information as simple as possible and I’d love to know your experiences with probate to update this post as we go. We can all learn from each other! Comment below with your experiences!

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