Probate Myths

There are many common misconceptions about probate including what it is, how it works, and how long it takes. So let’s clear up some of those probate myths!

If you have a will and a named executor, you don’t have to go through probate. MYTH!

If you have a will, then you have named an individual to serve as your executor (personal representative) and many people think that person should automatically be able to do things (like walk up to your bank, and split whatever money is in the account between the deceased’s children). Not true! To start, an individual who has been named in your will as your executor must go through the process of probating your will before they can be appointed as your executor. â€œProbate” means “to prove” and generally when we are discussing probate we are talking about proving that your will is valid before a court. Once your will has been probated, the court will issue letters testamentary which will give the executor the ability to carry out the wishes of the deceased.

Probate will drag on forever and cost a fortune, literally… MYTH!

Typically an estate is “open” for between six and eighteen months. This gives time for the executor to give notice to all interested parties including your family, any other beneficiaries, and any creditors. Additionally, they will have time to sell any property that needs to be sold, pay your burial expenses, and provide individuals with the chance to challenge your will if needed. Most importantly, it will give the executor enough time to distribute your assets to those parties named in your will, so long as their have not been any challenges to your will that have caused changes.

While there is some expense associated with probate, it is not astronomical in most cases. It will most likely include hiring a probate attorney and paying the court’s filing fees.

If I die without a will, the government will take all my assets through the probate process. MYTH!

This is just another one of those probate myths that continues to perpetuate. The truth is, if you die without a will or “intestate”, then the state will determine who will inherit your estate and how much they will inherit based on the state’s intestacy laws. This may include: spouse, children, parents, siblings… and if you have no living relations whatsoever on the face of the earth…well, then your estate may go the state. In order to avoid this happening, it’s important to have a will in place so that your estate does not pass through intestacy laws, rather your family (or distant relatives or even just friends named as beneficiaries) are provided for in the event of your passing.

In order for my family to receive life insurance after I die, my estate must go through probate. MYTH!

In reality, there are some assets that are not usually subject to the probate process. These include: accounts where you name a beneficiary like an IRA, 401(K) or POD accounts. Additionally, assets held in trusts will not go through probate (cash or real estate, etc…). Life insurance policies will not pass through probate. Finally, any assets that are jointly owned with the right of survivorship will not go through probate since they are owned by the joint owner who is still surviving.

There are many misconceptions about the probate process, but talking with an attorney to work through some of these probate myths will be vital to your understanding of how your estate will work. Contact us today if you have questions, or if you are interested in implementing an estate plan.

Read more articles about estate planning and family law on my blog.

Disclaimer: This blog is for informational purposes only and does not provide legal advice. It does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.