Austin Texas Estate Planning Blog

Is an Estate Plan Battle Looming

Is an Estate Plan Battle Looming?

December 22, 2022 • | Law Office of Zachary D Kamykowski, PLLC
If you own any property at all, you probably know about estate planning. You can decide what happens to your assets after you die, of course.

Some people don't create an estate plan before they die. They might die with debts conflicting with their wishes. Or, if they do, they failed to have an estate plan designed with an experienced estate planning attorney, and their will is unclear or even invalid. These and other situations can lead to a long and expensive probate period, as described in the article "In-fighting Families, Wills, Laws & Other Things That Could Hold Up Probate" from yahoo!.

How long does it take for an estate to move through the probate process? It depends upon the complexity of the estate and how well—or poorly—the decedent created their estate plan.

What is probate? Probate is the process where the court oversees the settlement of an estate after the owner dies. If there is a will, the court authenticates the will and accepts or denies the executor named in the will to carry out its instructions. The executor is usually the decedent's spouse or closest living relative.

How does probate work? State law governs probate, so different states have slightly different processes. The first thing is authenticating the will and appointing an executor. The court then locates and accesses the property the decedent owns. If there are any debts, the estate must first pay off the debts. When the executor has paid the estate's debts, the court can distribute the remaining assets in the estate to heirs.

The person is said to have died intestate if there is no will. The court may appoint an administrator to carry out the necessary tasks of paying debts and distributing assets. The estate pays the administrator.

How long does it take? It depends. If the decedent had placed most of their assets in trust, those assets are not subject to probate and distribute according to the trust's terms. If there are multiple properties in multiple states, the executor must conduct a probate proceeding in all states where the decedent owned property. In other words, probate could be six months or three years.

Estate size matters. Certain states use the estate's total value to determine its size rather than examine individual properties. Possessions subject to probate usually include personal property, cash and cash accounts, transferable accounts with no named beneficiaries, assets with shared ownership or tenancy in common and real estate.

Possessions not typically subject to probate include insurance proceeds, accounts owned as Joint Tenants with Rights of Survivorship, accounts with a beneficiary designation, and assets held in trusts.

Probate varies from state to state. Probate is not nationally regulated, and state-level laws vary. An estate could be swiftly completed in one state and take a few months in another. Some states have adopted the Uniform Probate Code (UPC), designed to streamline probate by creating standardized laws. However, only 18 states have adopted this code to date.

Fighting among heirs makes probate take longer. Even minor disputes can extend the probate process. If there are estranged family members or someone feels they deserve a larger share of the estate, conflicts can lead to probate coming to a complete stop.

An experienced estate planning attorney can help structure an estate plan to minimize the number of assets passing through probate while ensuring that your wishes are followed, and loved ones are protected.

Reference: yahoo! (Nov. 21, 2022) "In-fighting Families, Wills, Laws & Other Things That Could Hold Up Probate"

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