“Probate” is a word that gets thrown around a great deal when people discuss estate planning generally. It is important to understand what probate is and how the probate process works where you live so that you can make informed decisions about how preparing for probate (or preparing for how to avoid it) may influence your estate planning process.
What’s the Difference Between Estate Planning and Probate?
As an experienced probate lawyer – including those who practice at Theus Law Offices – can clarify in greater detail, estate planning is the process of putting your affairs in order so that your finances, property, medical preferences, etc. are clearly outlined and legally enforceable in the event of your incapacitation or death. By contrast, probate is the process of proving that your estate planning documentation (most specifically, your will) is legally valid and enforceable. Estate planning occurs before you pass away, whereas probate is the process of administering your estate in the wake of your death.
Note that there are two key concepts referenced in this broader definition of probate. Some states subject virtually all wills to a legal probate “proving” process after someone has died. Others do not require probate unless there is a question of validity or a dispute concerning someone’s will. Additionally, the term “probate” is sometimes used very broadly to refer to administration of a deceased’s estate. Estate administration encompasses everything from settling someone’s debts to distributing their assets.
Planning Ahead for Probate
Depending upon where you live, the probate process may be inevitable. Some Americans – due to the state laws that govern their estates – are able to avoid probate by placing their assets in trust and/or otherwise ensuring that their loved ones will not fight over their estate. If your state only requires probate under certain circumstances, working with an attorney can help you to avoid probate. But, if your state requires that your estate be subjected to the probate process, it is still important to plan ahead. Ensuring that you have a sound, updated, and well-constructed estate plan will help to ensure that your probate process is as low-stress for your loved ones as is possible under the circumstances.
Probate is a state-specific process and can be both complex and confusing. If you have questions about how probate works where you live and/or how you should be approaching estate planning with probate in mind, connect with an experienced attorney in your area for personalized guidance.