What is the general definition of probate?
It can be succinctly described as the legal process of estate administration. When certain circumstances exist, the probate court will provide supervision during the administration process.
Court involvement would only be necessary if there are no estate planning documents, right?
The condition of intestacy exists when someone dies without leaving behind any legally binding asset transfer instructions. In these situations, yes, the probate court would be called upon to sort things out.
A personal representative would be named by the judge to serve as the administrator. This is essentially the same role that would be assumed by an executor. The personal representative would pay final debts and otherwise follow the instructions of the court.
Ultimately, the remaining assets would be distributed to the heirs under the intestate succession laws of the state of Nevada.
However, if there is a will, the executor cannot act independently and distribute the assets without any court involvement. The will must be admitted to probate, and the same level of supervision would be provided by the court.
If I use a will and it is admitted to probate, will my heirs have to wait a long time to receive their inheritances?
That would all depend on your definition of the term “a long time.” In cases that are not complicated in any way, it will usually take about eight or nine months to a year for the court to probate and close an estate. No inheritances can be distributed during this interim, and most people would say that this is a rather lengthy delay.
Does the probate court handle any other matters that are relevant to the estate planning process?
The answer to this question is yes and no. When you plan your estate, you should address eventualities that you may face toward the end of your life. Many people become unable to make sound decisions at some point in time, and this is an unpleasant reality that you should confront in advance.
When someone is totally unprepared for incapacity, and that moment comes, the probate court would be petitioned to name a guardian to act on behalf of the incapacitated adult. The decision would be taken out of the hands of the ailing elder, and this is one drawback. Another is the potential for disagreements among loved ones.
To avoid a guardianship, you can include an incapacity plan within your broader estate plan. This would involve the execution of documents that empower people of your choosing to make decisions for you if it ever becomes necessary.
A living will can be added as well. This advance directive is used to record your preferences regarding the use of life-sustaining measures if you are unable to communicate while you are in a terminal condition.
How can you plan your estate to avoid probate?
Before we answer the question, we should add a couple of other reasons why probate avoidance makes sense to many people. In addition to the time factor, significant expenses invariably accumulate during the process. These expenditures reduce the amount of the inheritances that will eventually be received by the heirs.
Another negative is the loss of privacy. Anyone that has an interest can access probate records to find out how the assets were distributed. Most people like to keep their financial affairs confidential, and this information can lead to hard feelings among some interested parties.
To avoid probate, you could utilize a revocable living trust as the centerpiece of your estate plan instead of a last will. There are a host of benefits, and one of them is the fact that the trustee can distribute the assets in the trust outside of probate.
You can also account for resources that were in your direct personal possession at the time of your passing for one reason or another through the inclusion of a pour over will. This document would allow the trust to absorb these assets after you are gone.
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