The Probate Process:
Probate is a legal process that takes place after someone dies if he or she passes away without an estate plan or with only a Last Will in place. It includes filing a Last Will, if one exists, and hoping that the Last Will was done properly. Several papers are filed with the court when a probate is done, with or without a Last Will. Ideally, you have a Last Will in place and have nominated an executor, or personal representative as an executor is know in Arizona, that is in charge of following your wishes for your estate. The personal representative is responsible to the court for adhering to all of the probate requirements. Because of all the work involved, some people strive to avoid probate altogether.
What makes this process take so long?
Probate can be an inherently long process. Each of the steps above takes time and effort. Brace your Personal Representative for a long probate is you have a complex estate with multiple properties and many accounts. The more complicated your estate, the longer it could take to process. Your Personal Representative will have to track down all of your accounts and assets and their values. He or she will also need to inventory all your assets and debts. If your estate has income it will need to be documented and safely held until it is time to be disbursed. The more money, debts, income and assets means the more time and work that will be involved. Even assuming everything goes exactly according to plan, and there are no complications, probate can still take months to be completed.
If your Personal Representative isn’t efficient or is unwilling to ask for help, probate can take significantly longer. The already lengthy process can be much worse if your appointed Personal Representative is not up for the job. Think carefully about whom to select and make sure that he or she is willing to perform the duties required. If your Personal Representative struggles to meet court deadlines or struggles with his or her responsibilities, this process is going to be much more challenging.
Tax returns are also a time consuming part of probate. The IRS views the deceased person and his or her estate as two separate entities. The Personal Representative may need to file a return for the person who has passed away as well as for the estate. The representative will have to file an estate tax return if the estate value exceeds 5.4 million dollars. Your Personal Representative is responsible for making sure any tax due is paid from the estate. The judge will not close your probate case until the final return is filed and accepted by the IRS. This can all take a lot of time.
The more beneficiaries you have the longer it could take to get through probate. The more people who are named to inherit, the more work the Personal Representative will have to do. It can be very time consuming to try and track down people who are scattered all over the country or world and convince them to sign and return required documents.
Significant delays happen when beneficiaries disagree. If you run into the unfortunate situation of beneficiaries battling over the estate, this may drag probate out for years. It is so important to plan ahead and leave very clear instructions regarding the disposition of your assets, in order to help prevent disputes from happening in the first place. The longer that probate drags on, the longer the assets of an estate are tied up. A beneficiary may be in need of funds that are unavailable until the disputing parties and probate have been resolved.
What can you do to speed up probate?
- Avoid it altogether. The best way to speed up probate is simply to avoid it. This can be accomplished a number of ways, but the most common choice is to get a Revocable Living Trust. Assets that are interlocked with a Revocable Living Trust automatically avoid probate. Using a Revocable Living Trust is usually a much quicker and easier alternative than having to do a probate. You should work with an experienced estate planning attorney to properly explore this option.
- If you decide to create a Last Will instead of a Revocable Living Trust, use tools such as “Pay on Death” or “Transfer on Death” accounts to avoid probate. Bank accounts and most non-retirement investment accounts have the option of being “Pay on Death” or “Transfer on Death”. Using these tools allows your
Besides the lengthy time frame, probate has some other downsides to consider. Because probate is a legal process, your Last Will and the terms of the disbursement of your assets become part of the public record. Personal information about your Personal Representative becomes part of the public record, including that person’s Social Security Number, height and weight. In addition, your estate will be responsible for any court costs and legal fees incurred for probate, lessening the amount your beneficiaries receive. If you do not have proper estate planning in place, it can cost your estate and loved ones dearly. I will help you determine your needs and formulate a cost efficient, legally binding plan to execute your wishes. Seek experienced legal help today and avoid probate in Arizona.