Posted: January 17, 2018

Every human must come to terms with the finite nature of life. One of the greatest hardships in one’s life is losing a loved one. When a family member passes away, there are often loose ends to be tied up. It can be surprising how much tape there is to cut through by the surviving members of the family. 

The paperwork and bureaucratic regulations regarding a personal trauma can feel as though it is adding insult to injury. For this reason, estate litigation and the grant of probate is best handled by a designated executor or administrator as your personal representative.

The customs, laws, and regulations surrounding probate have changed over the years but the goal of the process is still the same. When a loved one leaves the earth with loose ends, the law provides a streamlined process of settling discrepancies. Sometimes, when one passes unexpectedly, debts may be left unresolved and estates may be left without a beneficiary. A will conveys one’s final wishes regarding their worldly possessions, amongst other things. However, not everyone has the ability or chance to accommodate this process.

Some of the debts that are left may be settled by law, instead of transferring the debt to a descendant. The remaining debt can be taken out of the deceased person’s estate or property before the legal title is transferred to an heir or beneficiary. This legal process is called probate.

Administrative Oversight

After someone passes and a death certificate has been issued, the probate court supervises the process of transferring property to the beneficiaries of the deceased. However, this is not carried out until the remaining debts are settled from the deceased person’s properties. 

The process of probating a will involves providing legal proof such as legal documents like a death certificate to the probate court of the deceased person’s heirs following all legal advice, formalities and regulations in the drafting of their loved ones will.

For most, this is a burden rather than a joy as it could mean “inheritance tax” for certain members of the family. Many do not want to deal with financial matters while they are in a grieving period, which is understandable. However, for opportunists, they attempt to avoid the process of probate is often fueled by one’s inability or unwillingness to pay the necessary court probate fees. Debts which can be left unresolved often require the probate of life insurance policies and bank accounts.

The probate system exists to protect all parties involved in the matter. Though it can seem cold, unfeeling, and cumbersome for the final memory to be that of one’s financial prospects beyond the grave, it is a necessary regulation for all parties involved.

However, for those who wish to preemptively avoid the probate process, it is possible to mitigate one’s involvement or avoid the process altogether. If one wishes to negate the protections of probate, there are three ways in which that can be made possible. This involves the right of survivorship with joint ownership, a one-time gift, and implementing recoverable trusts. However, for most people, the probate process is necessary for one to feel at peace with every aspect of a loved one’s passing.

Contesting a Probation of an Estate

An individual may either contest probate or leave it uncontested. When the probate process is contested by a beneficiary, it can often stem from financial opportunism. An heir may feel they are not receiving their “fair share” of an inheritance or property liquidation and, by contesting the process, they seek for the courts to grant them an additional inheritance. 

The arguments made in the attempt to contest probate are sometimes not aimed at a personal financial gain in a loved one’s passing. The deceased individual may have been coerced or influenced by a party with ulterior financial motives, improperly influencing the party in question to disperse their inheritance in that person’s favour. If the deceased person was in a state at the time of drafting their will wherein they were not mentally sound or didn’t know what they were doing, the probate may be contested.

The Process of Probate

Most estate probates are left uncontested for obvious reasons. The distribution of money can be a poor farewell to the most important people in one’s life and complications are undesired and inappropriate. For those who carry out the wishes of the deceased party as dictated, the probate process of probating an estate comprises five steps:

  1. A collection of the deceased’s probate property.
  2. Settling debts, claims, and the payment of taxes, which are left unresolved by the estate in question.
  3. A collection of the rights to income, dividends, and other ongoing financial assets.
  4. The settlement of any other disputes, regarding the probated estate or will.
  5. Lastly, the transfer and distribution of the remaining property to the designated beneficiaries and heirs.

Other processes may be involved, depending on the complexity or wishes laid out in the will; however, most probate processes follow the above steps.

Do you need a will?

Thinking about drafting up a will can be unsettling, scary, or freeing. Even if you do not desire a will or think a will is unnecessary, the peace of mind knowing your loved ones will respect your wishes can give one a feeling of calm.

All that a will does is lay out one’s wishes regarding how their property will be distributed upon their death. Wills are not only necessary for those in their later stage of life but can be even more crucial when one is taken before their time. Leaving the burden of property distribution or inheritance tax to successors and family members can create more pain and exacerbate the mourning process.

Helping Hands

Upon one’s death, most people will have already named an executor or administrator as a personal representative of their will. An executor is a person who will take up the management of the affairs in question, after the party’s death.

Many people name an executor who is trusted by the parties involved with the power of attorney to avoid financial opportunism. A party may name their present attorney for the required administration. If you or a loved one require assistance in the naming of an executor of a will, contact Estate Connection for a lawyer to guide you through the process.

No matter if one is single, married, rich, poor, young, or old if there is any property or assets to be distributed one should formalize their intentions through a will. Not only does it give a peace of mind regarding the inevitable, but it keeps safe your wishes and entrusts the court to make sure your instructions are respected as you intended them. The process of drawing up a will should be painless, therefore, finding the best wills and estate lawyers is an essential function for responsible adults. The attorneys at Estate Connection will guide you through the process of probate and name an executor of your will so you or a loved one can enjoy life without unnecessary worry and pass to the next world in peace.