One of the topics I am most frequently asked about by estate planning clients is probate.
- What is it?
- Why is it necessary?
- How much does it cost?
These are questions I answer on a weekly basis.
Simply put, probate is the court-supervised process of administering a decedent’s estate, ensuring any outstanding obligations of the decedent are taken care of, and ultimately distributing the decedent’s property out the intended heirs or beneficiaries. As daunting as that may sound, we Montanans are lucky because probate here is not nearly as expensive or arduous as it is in some other states. Where the decedent lived will determine where their property will be probated, so if they lived in Montana then their estate will need to be probated here.
One thing to keep in mind is that probate only applies to the transfer or disposition of probate property. Importantly, property owned in joint tenancy, or that which has a valid transfer on death (TOD) or pay on death (POD) designation typically does not need to pass through probate. Rather, those types of assets transfer to the named beneficiaries as an operation of law upon the decedent’s death.
While many people assume that probate is something to be avoided at all costs, in reality probate has many benefits as well. Perhaps the most significant of these is the fact that once the probate process has been completed, there can no longer be any future claims against the estate. If probate is not completed properly, it is possible that a creditor or other person believing they have some interest in the estate could show up well after the estate is settled and make a claim against the estate. Completing the probate process is a relatively inexpensive way to prevent such a scenario from happening.
How complex a given probate matter will be depends on many different factors. If you find yourself appointed the personal representative of a loved one’s estate, don’t panic. Rather, get the help of an experienced probate lawyer who can assist you through the probate process, help you deal with creditor claims, and ensure that the decedent’s estate is probated correctly.