Before a judge allows the personal representative or executor named in a will to distribute any estate assets, the estate must pass through probate. While the majority of estates are probated without issue, occasionally, issues arise that can cause problems and lead to disputes between family members. Additionally, the probate process presents many challenges for those named as executors or personal representatives.
At Batson Nolan PLC, our Hopkinsville probate attorneys have more than 160 years of experience helping clients through the probate process. We also offer estate planning services that can reduce the assets that must pass through probate. Contact us today.
What Is the Probate Process?
Probate refers to the process an estate must go through before the beneficiaries named in a deceased person’s will can inherit any assets from the estate. As a general matter, the probate process is fairly complex; however, it can be broken down into a few steps. First, a probate judge must verify a person’s death by reviewing the death certificate. Next, the judge reviews the decedent’s will to ensure its validity. Once the judge determines the will is valid, the judge appoints an executor or personal representative to oversee the administration of the estate. In most cases, this is the person named in the decedent’s will. However, if the named party is unable to serve or chooses not to, the judge will appoint another party as the executor or personal representative.
An executor or personal representative has several important duties, including:
- Accounting for all estate assets;
- Determining the value of estate assets;
- Identifying all of the decedent’s debts;
- Paying those debts;
- Resolving any outstanding tax obligations;
- Defending against any lawsuit filed against the estate; and
- Distributing the estate assets according to the terms of the will.
Given all of these steps, even when the probate process goes smoothly, it still takes considerable time to complete. However, there are various issues that may come up which can add to the time—and cost—of probating an estate.
Will Contests: The Most Common Problem During Probate
Probate can be an emotional and high-stakes process. After someone dies, their loved ones go through the process of grieving the loss. However, during this emotional time, family members sometimes develop what they perceive to be a vested interest in a portion of the decedent’s estate. If a loved one assumed they were getting something that the will did not provide for, they might decide to challenge the validity of the will. This is referred to as a will contest.
Three Types of Will Contests: Capacity
Generally speaking, there are three common types of will contests. The first is a challenge to the capacity of the will’s creator to create a will. To execute a valid will in Kentucky, the testator (the person creating the will) must have “testamentary capacity.” Testamentary capacity is another way of saying that the testator must be of sound mind. Thus, a loved one may claim that a testator lacked testamentary capacity when they executed the will and, as a result, the will is invalid.
Another common basis for a will contest is that someone unduly influenced the testator to include a term that was favorable to the influencing party. For example, one child may make false statements to an aging parent about the child’s siblings in hopes of convincing the parent to cut one or more siblings out of the will.
The third type of will contest is based on some procedural defect with how the testator executed the will. To create a valid will, a testator must sign the will in front of two witnesses. Additionally, each witness must sign the will in front of the other witness. Thus, someone may claim that the signature requirements were not followed, thereby making the will invalid.
If a court determines that a will is not valid, the court disregards the entire will. This can result in devastating consequences for a family.
Can You Eliminate the Number of Assets that Must Pass Through Probate?
Yes, it is possible to reduce—or even eliminate—the need to probate a will. Not all types of assets are probate assets. As a general rule, property that a person owns solely in their own name must go through probate before being passed on to heirs. However, jointly-owned assets do not need to pass through probate because they automatically transfer to the other owner upon one owner’s death. Therefore, the type of asset (how it is owned) determines whether it must be probated. Common types of non-probate assets include:
- Bank and brokerage accounts that have Payable on Death (POD) or Transfer on Death (TOD) designations;
- Life insurance and brokerage accounts that list someone other than the decedent’s estate as the beneficiary;
- Property held in most types of trusts;
- Real property held in joint tenancy or as tenants by the entirety; and
- Retirement accounts.
The complete list of non-probate assets is much more comprehensive—but these are the most common non-probate assets. Experienced Hopkinsville probate attorneys can help you learn more about which probate avoidance strategies make the most sense for your particular situation.
Common Probate Avoidance Strategies
Given the time, expense, and stress of probating a will, many families plan ahead to reduce the number of assets that must pass through probate. Will and probate attorneys employ a number of probate avoidance strategies, including:
- Transferring assets into the names of loved ones;
- Adding loved ones’ names to bank accounts;
- Adding loved ones’ names to real estate or vehicle titles;
- Creating revocable living trusts; and
- Adding beneficiary designations.
Again, these are just a few ways you can avoid probate; there are many others. At Batson Nolan PLC, we have extensive experience working with families to structure their estates to avoid the need for probate as much as possible.
Contact the Experienced Hopkinsville Probate Lawyers at Batson Nolan PLC Today
If the thought of probate seems daunting to you and full of unnecessary risk and expense, you are not alone. At the law firm of Batson Nolan PLC, our Hopkinsville probate attorneys have helped countless families through the probate process. Our probate lawyers assist personal representatives and executors in fulfilling their obligations during the probate administration process. We also have a dedicated team of lawyers and staff to help your family address your estate planning needs, such as creating powers of attorney or a living will. To learn more and schedule a free consultation with the Hopkinsville probate lawyers at Batson Nolan PLC, call or connect with us through our secure online contact form.
Our experienced legal team handles a variety of other cases as well, including:
- Estate Planning,
- Real Estate
- Business/Corporate Law
- Limited Liability Partnership
- Wills and Trusts,
Frequently Asked Questions
Here are a few common questions that typically come up when going through the probate administration process. Reach out to the Hopkinsville probate lawyer at Batson Nolan PLC, and we will be happy to answer your questions.
How Long Does Probate Take?
The length of probate depends on the complexity of the estate, but it can take anywhere from a few months to several years to complete. There are options for small estates (those with a value of $50,000 or less) where the probate process is significantly shortened. For larger estates, here are some factors that impact the timeline for probate:
- If someone contests the will;
- If the decedent has a taxable estate;
- If the decedent held business interests; and
- If the estate has assets that are difficult to value or liquidate.
These different issues affect both the time and cost of probate. However, the seasoned Hopkinsville probate attorney at Batson Nolan PLC can help keep the process running smoothly and efficiently.
When Is Probate Required?
Probate is only necessary if the decedent died owning assets solely in their name. These are known as probate assets, and they must go through the probate process before being distributed to the rightful heirs. The court looks to the decedent’s will for instructions on who inherits the assets.
Non-probate assets, on the other hand, are assets that are jointly owned or have a beneficiary designation. For example, life insurance policies, 401Ks, and property titled as joint tenants with rights of survivorship are all non-probate assets. These automatically pass to the co-owner or beneficiary without the need for court intervention. Probate is unnecessary for these kinds of assets because we already know who they belong to next.
How Long Do You Have to File for Probate After Death?
There’s no deadline on when you have to file for probate in Tennessee. However, you cannot take action on behalf of a deceased person’s estate without obtaining letters of administration or letters testamentary.