The probate process is the legal process for handling the assets titled in the name of an individual after his or her death. Through this legal process, probate results in assets formerly in the name of the decedent being collected by the personal representative and distributed in accordance with the decedent’s last will and testament, or in accordance with the intestate succession laws in the event the decedent did not have a will.
At the end of the probate process, the assets have been identified, collected, and valued; all taxes and debts have been paid or resolved; and the assets have been transferred to the appropriate beneficiaries.
Not all property passes through the probate process. Probate only includes property in the decedent’s name or in which the decedent has an interest. It would include, for example, a decedent’s 50% interest in ABC Company, LLC, or a car titled solely in the name of the decedent.
Property which does not pass through the probate process would include, for example, property held in survivorship with others; or an insurance policy payable to a specific individual or entity; or the designated beneficiary of a retirement account.
The attorneys at Berry & McGehee PLLC assist executors, administrators and personal representatives in probating a decedent’s estate. We will walk you through the process, and guide you every step along the way.
We also help our clients decide, during the estate planning stage, whether probate avoidance is something that they should consider. This is a topic that our clients frequently ask about, as there is a lot of publicity surrounding tactics to “avoid probate.” In many cases, it is not necessary or desirable to “avoid probate.” For most estates, it is an inexpensive process that does not take a long time. Further, most beneficiaries are exempt from inheritance tax in Kentucky. Additionally, with the large exemptions from federal estate tax that are now in effect, most estates are also exempt from estate tax. Therefore, in Kentucky at least, there are very few things to “avoid” in probate. In fact, there are often advantages to initiating the probate process. For one thing, it creates a bar to creditors who do not timely present a claim against the estate. Another advantage is that it creates a clear paper trail of the transfer of property from the decedent to his or her beneficiaries. There are certain situations when you may seek to avoid probate. For example, you may wish to keep your affairs private. However, the important thing to bear in mind is that probate is not necessarily a bad thing; rather, you should discuss the pros and cons with an experienced estate planning attorney to make an informed decision that works for you.