What Is Probate?

Although states have slightly different rules, probate is basically the court process that ensures your wishes, as outlined in your will, are carried out. This includes the distribution of your assets – like property and investments. But many people don't want their families to go through the public and, many times, lengthy probate process. 

If you understand how probate works in your state, you can put estate strategies in place to potentially avoid probate. Your financial advisor can work with you, your attorney and your tax professional to determine what may work best for your situation.

What happens?

Generally, an attorney submits a last will and testament to the probate court, which starts the process to:

  • Notify beneficiaries and creditors. This is done to ensure that everyone who might have an interest in the estate knows about the court proceedings.
  • Formally appoint an executor or personal representative, who is usually named in the will.
  • Review and inventory assets and debts.
  • Continue management of property and pay any outstanding debts.
  • Prepare final tax returns and complete other record keeping.
  • Make final distributions to beneficiaries.

It's important to remember that every state and local municipality has different rules and processes for probate. Talk to your attorney to learn more about how probate may look where you live.

Are there any assets that don't need to go through probate?

Some types of property (sometimes called non-probate assets) pass automatically to specific beneficiaries without a court’s involvement. For example, if you name beneficiaries on assets including transfer on death (TOD) accounts, 401(k)s, IRAs, insurance policies and annuities, they won't have to go through probate. In addition, assets that are titled in certain ways (like "joint with rights of survivorship”) don't need to go through probate since they pass directly to the other joint owner.

Are there disadvantages of probate?

The probate process is intended to help provide some oversight on how your estate is handled after your death. But with that oversight come some potential disadvantages, including:

  • Probate is public- The court proceedings are public record, and in many cases, a notice to creditors is done through a public medium, like the local newspaper.
  • Probate can be costly and time-consuming- Depending on where you live, probate costs can range from 2% to 5% of the estate's value. And because it's a legal proceeding, state law determines how long this process may take – anywhere from a few months to a year or more.

How we can help

No matter what your estate includes, we believe it's important to understand how your assets will be passed down to your heirs. This includes gaining a high-level understanding of the probate process. With your team of legal and tax professionals, your financial advisor can answer questions you have to make informed decisions regarding your estate strategy.

Important Information:

Edward Jones, its employees and financial advisors are not estate planners and cannot provide tax or legal advice. You should consult your estate-planning attorney or qualified tax advisor regarding your situation.

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