Article 47-Estate Planning Series: What is This Thing Called Probate?

Written by Wright Law on . Posted in Estate Planning, Probate, Will

“Probate” is a term most have heard, but don’t know what it means.  Some know it has something to do with a Will, but don’t know how.  More than a few have been told it is something to avoid, but aren’t sure why.

What is probate?  Probate is a process in which a judge ensures that the debts of a deceased person (the decedent) are paid before his/her assets are distributed; and that the remaining assets are appropriately distributed. 

Is probate a lawsuit?  No.  In fact, the people involved will usually never go to the courthouse.  A judge simply supervises the probate process.

Does it matter whether I have a Will?  No.  Probate may be necessary whether or not the decedent left a Will.

If that is true, why should I have a Will?  Probate ensures the personal representative pays the debts and distributes the remaining assets to the right people.  If the decedent left a Will, the Will describes the people who are to receive the assets.   If there is no Will, the State of Idaho dictates who will receive the assets.  In my opinion, it is always better to have a Will so that you can control who will receive those assets.   

What is a personal representative?  This is what most people call an executor. It is the person who takes on the responsibility to make sure the decedent’s bills are paid (if there is enough money left) and then to distribute the assets.

Do the decedent’s debts have to be paid before I can receive any of the assets?  If the creditor was given notice of the probate, and submitted its claim in time, the debt must be paid first.

If there are not enough assets to pay the debts, does the personal representative have to pay those bills from his/her own money?  No.

Is probate required?  No. 

So why would I have my estate go through probate?  Stay tuned for the answer in my next column.

© 2016 Steven J Wright 

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