In this week’s blog post in our understanding estate planning series, we are going to focus on understanding probate. Specifically, we are going to ask what probate is, why it matters, and how it will play a role in the estate planning process. Probate is one of those issues that, while many people have heard about it, few people really understand it. So, let’s shed some light on this all-important estate planning topic by asking some essential questions.
What is probate?
Put simply, probate is the legal process surrounding the transfer of property from a deceased person to a living person. Every state, including Kansas and Oklahoma, has laws that determine who will inherit from a person who dies and leaves behind property. These laws, known as probate laws or the probate code, not only determine who inherits property, but also set out specific procedures that must be followed before it new owners can take possession.
Understanding Probate: Why is probate so important to estate planning?
Your estate is the collection of property and legal issues you leave behind after you die, so understanding how the probate process affects your estate is a necessary part of creating a plan that accomplishes your estate planning goals. In order to have an effective estate plan, your plan has to take the relevant probate rules and requirements into consideration and plan around them. If, for example, you create a plan that ignores the requirements imposed by probate laws, you might create a plan that is effectively worthless.
On the other hand, if you create a plan that takes advantage of specific legal tools, you can minimize, and in some cases completely eliminate, the requirement that your estate has to pass through probate at all. A good estate plan can not only minimize the potential expenses associated with probate, but can also ensure that your property will transfer entirely outside of the probate process itself.
What is living probate?
Even though most probate issues involve the property left behind by a deceased person, probate courts are also responsible for hearing other cases. For example, if an adult is rendered mentally incapacitated and can no longer make decisions on his or her own, the court will need to appoint someone to make decisions on that person’s behalf, including manage that person’s property.
When this happens, probate courts are responsible for determining who should make choices for the incapacitated person. These types of cases are typically referred to as “living” probate cases because they do not involve the affairs of a deceased person as most probate cases do. As with regular probate cases, living probate cases have their own set of rules and requirements that apply.
Parman & Easterday