Monday, 03 August 2020 11:52

What is Probate and Should You Try to Avoid it?

Frequently, when individuals or families are contemplating wills, trusts, and an overall estate plan, the question of probate court comes up and how to bypass the probate process.

What is probate?

Probate is a court-supervised, legal process of settling an estate after an individual has died. A probate court judge first validates the decedent’s will and authorizes the executor or personal representative to follow the terms of the document. During probate, the executor or personal representative completes the estate administration process and files periodic reports with the court, keeping the court up to date on the status of the estate. If an individual dies without a will, the process becomes much more involved and more time-consuming.

What is involved in the estate administration process?

After a person’s death, an executor or personal representative is tasked with administering and settling the estate. In this process, the executor or personal representative follows the terms of the decedent’s will or trust agreement to carry out their estate plan. Generally, these steps include gathering and valuing assets, paying taxes, debts, and obligations, as well as making distributions to the beneficiaries. This process occurs even if the decedent’s assets avoid the probate process. The length of the estate administration process varies depending on the complexities involved, but typically estates are resolved within one to three years.

Why do some wish to bypass probate?

By holding all assets in a trust, such as a living trust, a person can bypass the probate process and ease the transfer of assets after death. If all assets are held in trust at the time of death, those assets are owned by the trust, not by the decedent. As a result, the property does not need to go to probate court at death. A major reason why many people desire to avoid probate is to keep personal affairs private since a probated will becomes a public document. Additionally, the estate may save time and money by bypassing the court and any potential legal fees.

The decision to set up a trust or trusts as part of an estate plan is one an individual should make with the help of an advisory team – typically made up of an estate planning attorney, financial advisor, accountant, and successor trustee or trust company.

To learn more about Cumberland Trust’s post-mortem administration team, click here.


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