Most people want to help their beneficiaries by sparing them the time and stress associated with having to go through the probate process after their death. Probate is a process enacted by the court which oversees the distribution of your assets and the settling of your estate upon your death.
If you die intestate (in other words, without a Will), the process of settling your estate will be handled by a court. A court-appointed administrator will be in charge of distributing your assets and paying any remaining debts. This person may or may not be the person you would have wished to administer your estate. It is unlikely in this event that your estate will be settled and assets distributed as you would have wished. If you would like to have control over establishing not only who will be the fiduciary of your estate, but also who will receive the proceeds from your estate, creating a Will is critical.
During the administration proceeding, an administrator will be in charge of paying any outstanding debts you owe, such as your mortgage balance, credit cards, and taxes. If there is money left over in the estate after paying all debts, the remaining is generally distributed to the surviving spouse or the next of kin.
Due to the time and resources involved, probate and estate administration can be expensive and time consuming for your estate. And, the court documents are made available to the general public. Your Will can be viewed by anyone who may be interested. On the other hand, avoiding probate allows the details of your estate to remain private.
It is important to note that even if you have created a Will your estate could still be subject to probate. Living Trusts are not subject to probate and are therefore commonly used as ways to avoid the probate process. However, any assets or property left out of your Living Trust could be subject to probate. So, it is critical to designate everything you own in your Living Trust when you create it.
It is almost always in the best interest of your beneficiaries to create a clear plan in the form of a Will, Trust or both. By doing so, you will save your loved ones a great deal of frustration, time, and money by avoiding the probate process.