5 Probate Myths You Must Learn About

5 Probate Myths You Must Learn About

by GM Malik

Probate is an integral part of estate planning. It is a legal procedure that settles an individual’s debts and distributes their assets after death. Unfortunately, many things like probate notices in NSW need to be clarified about probate, which can lead to confusion and misunderstanding. Here are some common probate myths you should know about.

1. Without a Will, the State Inherits the Deceased’s Estate.

There are many reasons to make a Will. But one is not to worry about the government taking your family’s inheritance. State law takes over if you pass away without a legally binding Will (known as dying “intestate” in legalese). The rules governing who inherits what vary from state to state.

Typically, your spouse and children will inherit first. The laws differ from state to state but in most cases. The assets of a deceased parent are divided between the surviving spouse and children. 

2. The Estate Probate Process Takes Years.

The majority of estates take little time to settle. The only real holdup is often the period required by state law to allow creditors to submit claims. State-to-state variations in the duration of the creditors’ claim window range from three or four months on the short end to a year on the long end. It typically begins when notice of the probate process is published in the local daily.

The estate may be closed following the expiration of that waiting time as soon as the personal representative has gathered all assets, settled all liabilities, and paid taxes. The estate might need a tax clearance notice from the state revenue department (in states with estate or inheritance taxes). Getting things in order generally takes a few more months. 

What then accounts for certain probate matters taking years to resolve? Three primary reasons exist.

Family Disputes

The court may need to become involved to resolve issues if a family member contests the Will or if siblings can’t agree on sharing a parent’s assets. That entails conflict, inconvenience, and cost.

An Enormous Estate

Things get more complicated if the estate is sizable enough to be subject to federal or state tax. The estate will only get resolved after the estate tax return is due, a few months after the decedent’s passing. Because the return is so complicated, many estates request a six-month filing extension. However, fewer than 20 states have their estate taxes. And more than 99.5% of estates do not owe federal estate taxes.

Ongoing Revenue

Then there are the celebrity properties we read about in the press, such as those of Michael Jackson. These estates continue to collect revenue decades after the death, often in the millions of dollars. So, ongoing revenue is another truth that you must know.

3. Probate Cost Will be too Much

There are a lot of tales floating around about how expensive probate is. If you assume the worst, you can imagine your family won’t receive anything after the court expenses and attorney fees are paid. Thankfully, that is just untrue.

First, a common question is whether or not all Wills require probate. State laws demand that the Will be sent to the executor or filed with the probate court; however, only some estates need this step. Only assets solely held by the deceased must often go through probate. Additionally, the family may benefit from probate shortcuts, which are less expensive than traditional probate, if the value of such “probate assets” is low enough.

However, even if a probate application in Victoria is required, the fees will probably not exceed 5% of the estate’s worth. In most states, filing a probate lawsuit, publishing the necessary legal notifications, and hiring an attorney to handle everything all add up to several hundred dollars. Add a few hundred dollars more for other expenses like appraisals and certified copies of court records. 

4. You Are Not Required to Leave Anything For Your Wife.

Some spouses opt not to give each other a sizable inheritance. They may decide that each Will leave most of their assets to charity or children from a prior marriage, especially if they both possess some property separately. Many second-married couples, especially those who wed later in life, primarily focus on supporting children from a prior relationship.

It can work out nicely if the surviving spouse is still content with the arrangement after the first spouse’s death. Depending on the state, state law may grant the survivor a third, a half, a year’s support, the right to dwell in the family home, or any combination of these.

5. You Can Serve As the Estate’s Executor Because You’re the Oldest Kid.

When it comes to being the executor (personal representative) of a parent’s estate. It doesn’t matter if you were always the responsible one or merely older and able to bully your smaller siblings.

Unless there is a vital cause not to, the court will appoint the executor that the decedent specified in their Will. (Examples of reasons include a criminal conviction or a handicap that prevents one from doing the position.) The court will appoint an executor if there is no Will or the executor listed in the Will cannot carry out their duties.

However, sibling order is not a consideration for the courts. The state statute, which lays out a priority list for who the court should designate, is what the court instead goes to for guidance. In most states, the surviving spouse is given priority over any registered domestic partner or civil union partner (if such choices are available). Then, adult children follow.

Connect with Probate Consultants for Better Clarity

Many misconceptions about probate can lead people astray when it comes time for their estate’s settlement after death. Knowing what these misconceptions are ahead of time can help ensure you don’t make any costly mistakes when determining someone’s estate after death. By understanding how probate works—and what myths need debunking—you’ll be able to handle everything confidently, knowing that you’re making informed decisions based on facts rather than fiction.

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