5 things you should know about probate and wills

by the Editor, SeniorInsider | Jun 02, 2011

The vast majority of probate cases revolve around Americans who are age 60 and over, so seniors need to be especially cognizant of probate and wills and all the issues surrounding them. Many of us are a little fuzzy on exactly what probate is although for general purposes it is the process which disposes of your estate after you die. The probate and wills subject is one that many people prefer to ignore—then wish they had not. If you want to ensure that your assets go to your heirs as you have directed, then probate and wills are an essential part of your senior estate planning.

We all know that a will is a necessary part of life—conversely, having a will virtually guarantees your estate will go through the often-laborious probate process. Don’t let that statement scare you away from making a will, because dying with no estate plan can cause even more problems for those who must deal with your estate.  

In other words, like taxes, probate and wills are one of the many requirements of life, like it or not. While it’s impossible to know exactly how much a specific probate will cost, the average financial cost to the estate is from 4-10%, and most probates average 13 months to complete. Over 90% of the estates belonging to single, widowed adults over the age of 60 will go through probate.

What Every Senior Should Know Regarding Probate and Wills

  • Probate generally comes into play when the surviving spouse dies; because most couples own property jointly, when the first spouse dies nothing much changes. The assets from the marriage simply become the survivor’s sole possession. Once the survivor dies, the property must go through probate before it can pass to the heirs.  Most seniors would be shocked to find out what a huge dent probate will make in their intended gifts to their heirs, and children and grandchildren will definitely feel the bite. Probate and wills are extremely important processes which should be taken very seriously while you are alive to forestall problems after you are gone.
  • Most people think that probate is not a necessity—don’t believe it. Death probate verifies the validity of your will, inventories and places a value on your assets, gives any potentially disgruntled family members a legal venue to challenge your will, and once all those steps have been complete, it legally transfers the title to your property to the heirs you have designated in your will.
  • Think about having a Revocable living trust as opposed to having your estate go through probate—one of AARPs top recommendations. A living trust makes probate unnecessary by means of changing how your property is owned. You still have absolute control, however rather than the property being owned in your name, your living trust owns it—and you own the living trust. When you die, the person you have chosen as Trustee simply steps in and follows your directives for estate disposition without the need for probate.
  • You’ve probably wondered if probate and wills are strictly for the wealthy—it is not! Even if your estate is worth no more than $50,000, it’s a good idea to have a living trust to avoid probate.
  • If you are wondering what attorneys think about probate, well it depends on whether they are probate attorneys or trust attorneys. Many attorneys have quite lucrative practices which focus strictly on probate, while living trust attorneys would probably wish there were no probates whatsoever in the world.

Probate and Wills—Necessary Evils?

A will can be deemed invalid due to improper execution, mental incompetence or if it is later determined you were under duress when you wrote the will. Any claims such as these and the will must go through probate. If you didn’t leave a will, your estate must go through probate. If your assets are owned solely by you, then the estate must go through probate even with a valid will prepared by an estate planning attorney.

If your assets are owned as a Tenant in Common or Joint Tenancy with another person (a common law marriage would be an example) then probate is necessary to properly distribute the deceased person’s share of the assets to legal heirs. Finally, if there are no designated beneficiaries, or if your beneficiaries die before you, then probate will be required.  In short, in absence of a living trust, probate is almost always required!



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