The easiest way to avoid the probate process is to plan; but if you are now in a situation where you must go through probate courts to finalize the estate of a loved one, the best thing you can do is get educated and get help to complete the process as quickly, and cost-effectively, as possible.
First, if you are here to learn about probate after the passing of a loved one, please know that we extend our sincere condolences; we are very sorry for your loss. We know that mourning the loss of a loved one is difficult by itself and can be compounded with having to handle the probate process during your mourning.
With that said, probate is a court-supervised procedure that helps to ensure the legal transfer of assets from the deceased to the rightful heirs or beneficiaries. Without probate, the assets of the descendent would be left with no one with authority to dispose or distribute, pay bills etc. It is also necessary to:
- Prove the validity of the will
- Appoint someone to manage the estate (The “administrator” if there is no will or the “executor” if there is one)
- Inventory and appraise the estate property
- Pay any debts or taxes (including estate taxes)
- Distribute the property as directed by the will—or by Maryland state law if there is no will
What’s so bad about probate and what should I do next?
PROBATE IS A PUBLIC PROCESS AND tends to be very expensive AND time-consuming. It takes a minimum of 6-12 months or longer to close an estate.
You can have one of TWO kinds of Estates:
SMALL ESTATE – ESTATES LESS THAN OR EQUAL TO $50K (OR $100K IF THE SOLE HEIR OR LEGATEE IS A SURVIVING SPOUSE
REGULAR ESTATE – ESTATES GREATER THAN $50K (OR $100K IF THE SOLE HEIR OR LEGATEE IS A SURVIVING SPOUSE
How is a Probate Started?
Although any beneficiary or creditor can initiate probate, normally the person named in the will as the Executor starts the process by filing the original will with the court and filing a Petition with the probate court. If there is no will, typically a close relative of the decedent who expects to inherit from the estate will file the Petition.
How is the Executor Chosen?
If the decedent had a will, the person named in the will as the Executor will serve, if eligible. If that person is unable or unwilling to serve as Executor, or if there is no Will, then any interested family member or person can petition the Court to be the administrator of the Estate.
What Assets are Subject to Probate?
Assets owned solely in the name of the deceased person are subject to probate. Assets that pass by means of title, such as real estate titled as “Joint Tenants with Right of Survivorship,” or bank accounts titled as “Transfer On Death” are not subject to the probate process. Assets that pass by means of a beneficiary designation, such as life insurance or some retirement accounts, are also not subject to probate. In some situations, however, assets that would otherwise pass by title or beneficiary designation can be subject to the probate process. Talk to an attorney if you have questions about your specific situation.
How is Distribution of the Estate Handled if there is no Will?
If there is no will or trust, the estate will be distributed according to Maryland’s probate and intestate laws, which state that a person’s estate will be distributed in the following order: 1. Spouse 2. Children 3. Parents (if you have no children) 4. Siblings (if you have no children or parents).
My loved one had a trust…will we need to go through probate?
In most cases, no. If your loved one’s assets are owned in the name of a Trust, the family can contact a lawyer who will complete some paperwork and guide the loved ones through the process with ease without the need for court involvement.
Why is that?
Often the Trust was prepared many years ago and was never updated; and often, their loved ones’ assets were not owned in the name of their Trust. That is why it is so very important that you carefully choose your estate planning attorney and have regular reviews of your plan and assets so the planning you do now works as planned later.
It’s why we do things so much differently than most other black probate lawyers and law firms, here at P.A. LUNDY & ASSOCIATES we ensure that you are protected and your affairs are in order.
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We would love to help you.