The probate laws of any state are the statutes that apply to estate matters. If you direct postmortem asset transfers through the terms of a will, the document would be admitted to probate. The executor that you name would act as the administrator, and the court would supervise during the process.
This is the court that would preside over intestate estate cases as well, and the probate court is in charge of guardianship and conservative matters. (A conservator would act as a representative for an incapacitated adult, and a guardian would manage the affairs of a minor.)
Uniform Probate Code (UFC)
At the beginning of the 1960s, the legal community collectively recognized the need for updates to existing probate laws. Each state had its own statutes, and there was a push toward uniformity for the sake of efficiency. Plus, some of the laws were archaic and the process was sometimes ineffective and unnecessarily inefficient.
Work began on the Uniform Probate Code in 1963. Six years later, the first version was released by the Real Property, Probate and Trust Law Section of the American Bar Association in tandem with the National Conference of Commissioners on Uniform State Laws (NCCUSL).
The UPC was updated in 1990 to reflect the current state of affairs. They wanted all 50 states to adopt the Uniform Probate Code, but this goal never came to fruition. Right now, 18 states are using the UPC, but California is not one of them.
Even though most states are not using the code in its entirety, portions of it are widely utilized.
Avoiding Probate
A modern, efficient probate process is a good thing, but there is no getting around the fact that probate creates hassles for the rightful heirs to an estate. No inheritances are distributed while the process is underway, and it will take close to a year at minimum in most cases.
There are expenses that add up, including a filing fee, legal and accounting expenses, the executor’s remuneration, and liquidation and accounting charges. These debits reduce the value of the estate before it is distributed to the inheritors.
Probate records are available to the general public, so there is a loss of privacy, and it opens a window of opportunity for disgruntled parties that may want to challenge the terms.
It is possible to plan your state with probate avoidance in mind. The revocable living trust is a very effective and versatile estate planning tool that will facilitate asset transfers outside of probate.
You do not lose any control of the assets while you are living, because you can act as the trustee. Probate avoidance is one of the many benefits, and you can check out this post to learn more about living trusts.
There are other types of asset transfers that are not subject to probate. Life insurance proceeds are transferred from the company to the beneficiary, and the court is not involved.
A payable on death account is a bank or brokerage account with a beneficiary. After the death of the primary account holder, the beneficiary will assume ownership of the account, and this is a probate-free transfer.
You can add a co-owner to the title or deed of your property. This would create the condition of joint tenancy, and it comes with right of survivorship. After the death of one joint tenant, the surviving joint tenant would be the sole owner of the property, and the transfer would not be subject probate.
Attend a Free Webinar!
We are conducting a number of webinars over the coming weeks, and you can learn a lot from the comfort of your own home if you join us for one of the sessions. There is no charge, but we ask that you register in advance so we can reserve your spot.
You can see the dates and obtain registration information if you visit our webinar page.
- How to Use Your Estate Plan to Protect Your Blended Family - June 2, 2023
- What Can I Do to Prevent Probate Disputes After I Am Gone? - June 1, 2023
- Understanding and Manipulating Estate and Gift Taxes - June 1, 2023
