Dean Godfrey works as a probate attorney in Wichita Falls, Texas. In the following article, Dean Colin Godfrey navigates the probate process, including the legal steps involved and common misconceptions.
Many view probate as a complex or scary process. However, it is an important step that honors a loved one’s wishes after they pass away.
According to a report by Advanced Inheritance, there are more than 3 million cases filed for probate every year in the United States. Americans spend about $2 billion each year, over 50 percent of which goes to attorney’s fees.
Having a will makes the whole process easier, as the executor named in the will is responsible for probate. However, if there is no will, decisions surrounding the distribution of inheritance will be handled by the state probate court.
Dean Godfrey Explains the Probate Process: An Overview
When an individual prepares a will, he is ensuring that his estate or assets are left with his loved ones. Another important thing to consider is probate, to ensure that the assets are legally and properly distributed to the beneficiaries.
Dean Colin Godfrey says that probate is the process of distributing one’s estate after death, supervised by the court. The appointed representative, referred to as the executor, is in charge of paying debts, creating an inventory of the assets, and distributing them according to the testator’s wishes in his will.
Probate is required in most states – it is considered to be an essential part of transferring ownership of an estate, especially land, real estate properties, and other titled assets. However, probate isn’t necessary in some situations. Some states offer easier ways to transfer assets, mainly depending on the type of assets that the testator owns.
Dean Godfrey says that certain types of assets can be transferred directly to beneficiaries and don’t require a probate. These include:
- Life insurance policies, retirement accounts, and other assets with a named beneficiary
- Investment accounts naming a beneficiary
- Business assets and properties that are jointly owned
- Living trust assets
- Certain personal assets
Common Misconceptions About the Probate Process
- It Takes Years to Complete: According to the American Bar Association, probate takes about 6 to 9 months. However, the duration of the process mainly depends on the state one lives in, the size of the estate, and more importantly, whether or not there is a will.
- Lawyers Charge a Percentage to Probate an Estate: Dean Colin Godfrey explains that probate attorneys cannot charge their fees based on a percentage of the total estate. Lawyers will typically set a reasonable fixed fee or charge hourly.
- A Living Trust is the Only Way to Avoid Probate: This is not true as there are various ways to do so, including Payable on Death accounts (POD), joint tenancy with rights of survivorship, and multiple-party accounts with financial institutions. It is best to consult with an estate planning lawyer before making any decisions.
- Any Type of Lawyer Can Assist with Probate: For an easier and smoother probate process, it’s best to hire a qualified probate attorney that specializes in the area to make sure the rules of the court are followed.
Probate: A Step-By-Step Guide
File A Petition
Dean Godfrey reports that the first step is to file a request from the county where the individual resided before his death. The person who filed the request will be named the legal representative of the estate. A death certificate and a will (if there is any) have to be submitted, after which the court will schedule a hearing to approve the executor.
Dean Colin Godfrey on Providing Notice
The executor must inform all beneficiaries, creditors, and heirs that the estate is in probate. They can be notified through mail or as some states require, publish a notice in the local paper.
Handle the Assets
The executor must then gather, create an inventory, and appraise all assets included in the probate and then present them to the court. These assets may include bank accounts, stocks and bonds, real estate properties, and collectibles (like valuable art collections).
Take Care of Bills and Debts
The next step is to pay any bills or debts of the estate, which may include outstanding rent, taxes, or paychecks. The executor must thoroughly check and review bank accounts, checkbooks, and emails to gather information.
Distribute the Assets
Dean Godfrey explains, once paid, the assets can now be distributed to the rightful individuals. When this is done, the executor must submit records and receipts to the court and request for the estate to be closed.
Probate, though often viewed as intricate, serves as a vital step in ensuring the rightful distribution of assets according to the testator’s wishes. The duration and complexities of probate vary, emphasizing the importance of informed decisions and expert legal guidance. By addressing misconceptions and presenting a step-by-step guide, Dean Godfrey equips individuals with valuable insights into navigating the probate journey with clarity and confidence.