Navigating the Complex Probate Process
Regardless of age, wealth, or family composition, most individuals want a structure in place so that assets are managed in such a way as to provide the greatest benefit and impose the least amount of stress on heirs after death. Unlike establishing and funding a revocable living trust, creating a Last Will and Testament alone does not avoid a probate process at death.
Not all assets need to go through a probate process. Assets which (a)are jointly owned with another, (b) contain a beneficiary designation, or (c) have been titled in the name of the trustee of a trust, avoid the probate process. [link to blog titled “What is Probate and How Can You Avoid It?]. However, when an individual passes away owning assets in the individual’s sole name and without a beneficiary designation, a court supervised probate process is needed. We help executors, families and heirs navigate their duties and rights under a complex set of probate rules.
Facts about Probate
What is probate?
Probate is a legal process by which a court oversees the identification and distribution of a decedent’s assets. If a person has a will, the individual dies “testate” and has memorialized specific wishes in writing; when a person dies without a will or trust, the individual dies “intestate” and state law controls who receives the assets. The probate process is public and requires the filing of not only the will, but also personal information regarding heirs and other documentation with the probate court in the county in which the individual died. A trust, in contrast, is designed to accomplish the private distribution of assets upon death.
What assets fall under a probate?
Simply stated, assets that fall under probate are assets that don’t legally pass to a designated recipient through another process. Examples of assets that would not be subject to probate include assets that have a legally designated beneficiary assigned to them (such as an insurance policy that names primary and contingent beneficiaries) or assets owned jointly which pass to the surviving owner (such as jointly owned financial accounts, or real estate owned as “joint tenants with rights of survivorship”). In short, if the individual dies owning an asset in the individual’s sole personal name, without a beneficiary designation, a probate will need to be opened.
How long does probate take?
That depends on the size and complexity of an estate, how well-inventoried the estate is and whether the executor is well organized. Another factor affecting the complexity of the probate process is whether the family gets along. Additionally, if the last will creates a continuing trust to manage an inheritance for a minor, a spendthrift heir, or someone with special needs, New Hampshire courts typically retain oversight during the entire duration of the heir’s trust. If an individual dies without a will in place (intestate), that further complicates and lengthens probate. Even under optimum circumstances, a New Hampshire probate must be open a minimum of 6 months, and often will take 9 months to a year, or longer.
Ways we can assist in understanding and administering a probate:
- Review the probate process, and its alternatives, with clients during life, so they can determine their preferred course of action.
- Work with clients to ensure assets that can pass outside of probate are appropriately identified and beneficiary designations are up to date.
- Assist in identifying executors and trustees, based on the clients’ preferences.
- Consult with and outline the various steps of the probate process for an executor who wishes to handle all the details independently.
- Work with executors and administrators to prepare the estate for probate and to comply with court-mandated milestones and directives.