What is Probate?
Most people who have not signed estate planning documents assume that they have no estate plan. However, if you die without a will, Virginia’s laws will determine who receives your property after you die.
Either way, if you die with or without a will in Virginia, your estate must go through a process called probate. If you have a will, your will is probated in the circuit court in the city our county where you resided before your death. When a will is probated, it is recorded in the public records for that city and the executor you named in your will must go to the courthouse to qualify as your executor.
If you die without a will, someone must qualify as your personal representative in order to handle the settling of your accounts and the distribution of your estate to your heirs.
Should My Estate Go Through Probate?
The probate process typically lasts for 12 to 16 months. During that time, your executor or personal representative must gather information about all of your assets and debts and file documents with the court. While this process is pending, distributions of your estate to your heirs could be delayed.
Additionally, the person named as your executor or personal representative will have to file an inventory of all of your assets with the court, as well as an accounting of what was done with all of your assets. Executors and personal representatives are responsible for a large variety of activities, including communicating with debt collectors and heirs of the estate. Allowing your estate to go through probate could create a significant time burden for your executor or personal representative.
Another downside to the probate process is that it can be expensive. At a minimum, an estate going through probate will be required to pay hundreds of dollars in filing fees to the courts.
If you hire an attorney to help you through the process, then probate will be even more expensive. Most attorneys charge an hourly rate for probate, with a retainer required before they can begin work on the file.
Finally, for those who prefer to keep information about their assets and debts private, it is important to know that probate is a public proceeding. Anyone can access all of the documents your executor or personal representative files on behalf of your estate.
How Can I Avoid Probate?
There are many ways to avoid probate. One way is to execute and fund a trust. If all of your assets are in a trust, they will pass through your trust instead of undergoing the probate process.
Another way to avoid probate is to add beneficiary designations or “transfer on death” or “payable on death” designations on your bank accounts and other assets. These designations allow certain assets to pass directly to your beneficiaries instead of going through the probate process.
Finally, if you have an estate valued at less than $15,000, you can usually avoid probate altogether.
Do I Need An Attorney?
The best way to make sure that your estate avoids probate after your death is to visit an attorney. An experienced estate planning attorney can make sure that all of your assets are titled in a way that allows you to avoid probate. Paying an attorney to draft an estate plan that meets your needs now is often much less expensive than paying an attorney for the probate process.
If a loved one has recently passed away, it is always a good idea to visit an attorney to review the financial and legal situation involved in the estate. If the estate is complicated or if the person who passed away did not keep good records of their finances, you may need to hire an attorney to help you sort it all out.
If a loved one died with a large amount of debt, an attorney can negotiate with debt collectors to reduce or even eliminate the amount of money the estate owes.
To schedule your consultation, contact Alperin Law today.