AEDC legal office offers help on understanding the probate process

  • Published
  • By Frank Turner, AEDC Contributing Writer
  • AEDC/PA
ARNOLD AIR FORCE BASE, TENN. --  A large part of our legal assistance practice involves preparing wills and related documents for our clients. It's important to have a will, but what happens when an estate goes to probate? Here are a few questions and answers to help you understand the process.

Q: What is probate?

A: Probate is the court-supervised legal process that determines the validity of your will, if you have one, and gathers and distributes your assets to those designated as beneficiaries in the will. If you die without a will, it is the process for distributing your assets according to the State intestacy statute. The term probate is also used in the larger sense of probating your estate.

Q: Who is responsible for probate?

A: The executor or personal representative named in the will is in charge of this process, and probate provides an orderly method for administration of the estate. The executor is held accountable by the beneficiaries and sometimes is supervised formally by a probate court. The executor is entitled to a reasonable fee or commission. Most state probate laws encourage or provide for partial distribution during the period of administration and assets may generally be distributed in kind rather than sold during this time. The tax laws generally focus the responsibility for death tax filings and payments on the executor under a will. Thus, the choice of an executor is an important one. Questions to ask yourself when selecting an executor include: is the executor responsible, is the executor trustworthy, is the executor capable, does the executor play well with others, and is the executor nearby or conveniently located (i.e., is the executor near the sate/county where probate will take place)?

Q: How does probate work?

A: Your assets are collected and applied to pay debts, taxes, and the expenses of estate administration. The remaining assets are then distributed to beneficiaries. Probate assets include those owned in your name and that are not transferred to another at death by contract or operation of law. Non-probate assets include life insurance payable to another, pensions and IRAs payable to another, accounts payable on death to another and any property owned with another with survivorship rights. Depending on your state's laws, property owned by spouses as community property may or may not be subject to probate. Even if an asset is not subject to probate it still may be taxable under estate tax law.

Q: What happens in probate?

A: Legal title of property you own individually transfers to your beneficiaries. If you die with a will, the probate process will establish the validity of your will under state law and distribute your property covered by your will in accordance with its terms and conditions. In some states the probate process is streamlined for estates under certain dollar limits. In Tennessee, a small estate procedure is available for estates having under $25,000 of personal assets.

On the other hand, if you die without a will (intestate), the probate court appoints an administrator to receive claims against your estate, pay creditors, and distribute all remaining property in accordance with the laws of the state. Because you have no will, your property must go through "probate" for legal title to transfer to your heirs at law. The law of the state of your legal residence defines your heirs at law. In Tennessee, if you die without a will and are survived by a spouse and children, then they will share in the distribution of your estate.

Q: How does probate start?

A: If you die with a will, probate usually begins by your executor filing a petition to administer your will. An executor is the person you named in your will and the executor's job is to protect your property until all the debts and taxes have been paid and then ensure the remaining property is transferred to your beneficiaries. An executor has a special duty to act with the highest degree of honesty, impartiality and diligence.

Q: How may I find my state's probate information?

A: Many probate courts are part of county governments and many counties have their own websites that include probate information. You can contact your county's probate court or ask your attorney for information on your state's probate laws and regulations.

Q: I've heard I should avoid probate at all costs, should I?

A: Some states have more complicated and expensive probate processes than others. The complexity of the probate procedures of the state you live in is an important factor in deciding whether to use probate avoidance techniques. Probate is generally a matter of public record, and a will admitted to probate is open to public inspection. Therefore, if privacy is a concern, you may want to avoid probate. Many states have streamlined procedures for small estate administration. Depending upon the laws and procedures of the state in which you live, and the circumstances of your particular estate, the probate process may or may not be an expensive, time-consuming process. In Tennessee, probate attorney fees are usually charged on an hourly fee rate. In some states, attorney fees are calculated based upon a percentage of the estate. Determining whether probate avoidance is appropriate for a particular estate can involve complex legal issues. To determine whether probate avoidance is appropriate for your estate, you should consult a qualified attorney to review your particular circumstances.

If you are entitled to legal assistance, contact the AEDC legal office at 454-7814 for further assistance.