When a person dies and has no Will or has a Will, but has no named beneficiaries for his/her assets, including such designations as, “To my Estate” then the Executor will need to determine whether there is over $100,000.00 of these assets or any real estate that is not owned protected by Transfer On Death Instrument, jointly owned or previously deeded to the deceased person’s Living Trust. The Probate process is where the state law is needed to appoint an Administrator/Executor and to verify that the proper statutory procedures are followed to pay the creditors and distribute the proper shares of the estate to the heirs at law and people or charities named in the Will, known as legatees.
When a person dies with a Will, the bond is often waived and the Executor is effectively nominated. The Court will examine the original Will and appoint the Executor as the Independent Administrator to probate the estate, issuing Letters of Office that serve to give that person authority to handle the estate’s financial matters. This is a Testate matter.
When a person dies without a Will, there will need to be a bond paid that protects the estate from theft or mismanagement on the part of the court appointed Administrator. The division of the estate will be determined by state law, only, such as 50% of the estate going to the surviving spouse and 50% of the estate going to the surviving children of the decedent. Having a Will in place permits the testator to give the amounts to the spouse that he/she desires, after the state minimum is satisfied. Clearly, the state must decide if the deceased person has not previously done that in a Will.
There are many complications that can arise through the process of probating the estate, but the benefits are: the Administrator is protected from personal liability if they have acted in good faith; the creditors and litigants may be cut off after six months, if proper notice is given; if the estate is insolvent, the priority of payment is followed and the lowest level creditors must take a smaller share of what remains, if anything; and it is an orderly process to settle the estate with all concerned able to contest improper actions on the part of the Administrator, if necessary.
Sometimes it is strategically desirable to probate a small portion of the estate, even when the majority of the estate is held in a Living Trust. This is because the estate can cut off creditors in six months, as opposed to the two year statute of limitations for trusts, and if relatives are threatening litigation, they must mount the suit within six months or be cut off. Generally speaking the Living Trust is a much easier and cheaper process, but it does require some investment and foresight on the part of the testator.