Probate in Plain English

Most people only hear about probate when they’re already overwhelmed and grieving. Some people think probate is scary or complicated. Many people think that probate can be avoided if you have a will. Once you understand what it is and isn't, it will be much easier to navigate.

Simply put, probate is the legal process of wrapping up the affairs after an individual dies (referred to as "decedent") by giving legal authority to another to pay the bills and taxes and transfer the assets.

The probate process will usually still happen even if a will exists. A will is your written instructions. It informs the court who you request to handle your affairs and how you would like your belongings to be distributed. Probate is the legal process that makes those instructions official. If you die without a will, your estate still needs to go through probate, however, the court will appoint someone to act as the administrator, and your belongings will be distributed according to state law.

Probate is required when:

• Someone dies without a will

• Assets are titled only in the decedent's name

• There are no beneficiary designations

• There’s real estate that isn’t jointly owned or TOD (transfer on death)

• There’s conflict or uncertainty

The probate process exists because banks, title companies, and financial institutions need legal authority before they can release accounts or transfer property. Without probate, the people left behind often can’t act at all. Probate also ensures that if there is a will, that it is legally valid under state law by confirming it was properly signed, not forged, not replaced by a newer version, and not created under pressure. Probate makes sure matters are handled fairly, that no one takes property they are not entitled to, and that the right people receive what the law says they should when there is no will to outline the distribution.

Some things pass outside of probate automatically, even without a will:

• Beneficiary‑designated accounts

• TOD and POD accounts

• Jointly owned property

• Life insurance with named beneficiaries

• Trust assets

See last week's post about beneficiary designations, TODs, and PODs here: Beneficiary and Transfer on Death Designations (TOD): The Part Most People Forget | Denise Bonk, Attorney at Law

Probate takes time, sometimes several months or years. The timeline depends on:

• The assets involved

• Whether there's conflict

• How quickly information can be gathered

• Whether creditors file claims

Lastly, probate filings are public record and include what the decedent owned, who is receiving it, and who is involved. This is one of the main reasons people choose tools that avoid probate when possible. This is one more reason why having your Life Essential documents and beneficiary designations updated matter so much.

Please note that the probate process varies from state to state and the purpose of this post is to help familiarize you on a basic level. You should seek the legal guidance of an attorney if a loved one has passed and you need to go through probate to help wrap up their affairs. At this time, I am not assisting on probate matters, however I can connect you with counsel that can help. However, if you are ready to create or update your Life Essentials documents and you live in the Indianapolis metro area, please reach out for a free consultation by clicking the button.

Denise Bonk, Attorney at Law

317-202-5773 (talk or text available)

denise.bonk@outlook.com

PO Box 40233 Indianapolis IN 46240

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