Does Your Estate Have to Go Through Probate?

POSTED ON: August 23, 2021

Every estate that holds titled property must be probated if title to that property is not transferred using some other wealth transfer method.

Does Your Estate Have to Go Through Probate?

Probate is a court-supervised process intended to ensure the validity of a last will and testament and it protects the distribution of assets after a person has died. If there is no last will, probate still takes place, according to the article “Probate—Courts protecting you after death” from Pauls Valley Democrat.

Every estate that owns property must be probated, unless the title or ownership of the property has been transferred before the person died by gift, if the property is owned jointly with another person, or if it passes by direct beneficiary designation. If a person died without a last will, probate still takes place, but the guidelines used are those of the state law where the person died.

In all cases, it’s better to have a last will and to decide for yourself how you want your assets distributed. For all you know, your Louisiana law may give everything you own to an estranged third cousin and her children, who are perfect strangers to you.

If you don’t have a last will, which is referred to as dying “intestate,” the court decides who is going to serve as your administrator. This person will be in charge of distributing all of your worldly goods and taking care of the business part of settling your estate, like paying taxes, selling your home, etc. Without a last will, the court picks a person, and it might not be the person you would have wanted.

Here are the basic steps in probating an estate, once the probate petition is filed:

Petition to Probate or Petition to Appoint Administrator.  In this step, the court court affirms its jurisdiction through an “Affidavit of Death, Domicle and Heirship”, and identifies all known heirs.  The executor or administrator is identified and appointed by the court.

Letters Testamentary or Letters of Administration. This document is issued to the executor or adminitrator.  This is a judge signed document which proves to others, like banks and investment custodians, that the executor or administrator is legally permitted to handle your property and act on behalf of your estate. It’s similar to a Power of Attorney.

Descriptive List of Assets.  In this step, your executor or administrator files a list of all of your assets and debts, making what you own going through probate potentially subject to public scrutiny.  The Descriptive List will list the value of all assets, including your real estate (your home), stock and bond portfolios, automobiles, trailers and boats, as well as all debts such as credit card debt and home mortages.

Probate. This court process collects, identifies, and accounts for all assets of a decedent. The representative must be mindful to document any money going in and out of the estate during the administrative process.

Written notice must be given to all and any known heirs. This can lead to relatives and others believing they have a claim on your estate and to then challenge the provisions of your last will with the court.  Notice is also provided to creditors, or creditors can file a claim in your succession proceeding.

Petition for Possession, Final Accounting and Final Tableau of Distribution.  At this stage the executor or administrator will file his or her accounting of his office with the court, and propose a final tableau of distribution of assets.  The Petition for Possession will ask the court to place the heirs or legatees in “possession” (ownership) of the assets of the succession.

Judgment of Possession.  The Judgment of Possession is signed by the judge presiding over the probate proceeding.  This is a judgment of the court officially recognizing the owners of the inherited property.  A copy of the Judgment of Possession must be filed in the conveyance record of the parish in which the decedent owned real estate.

An estate plan is created with an eye to minimizing taxes, maximizing privacy for the family and heirs, and transferring ownership of assets with as little red tape as possible. A plan can be put in place to avoid probate altogether.  Failing to properly plan can lead to a probate taking months, and in some cases, years.

If you would like to talk about initiating a probate proceeding for a loved one who has died, or if you would like to discuss avoiding probate for your estate, BOOK A CALL with Ted Vicknair.

Reference: Pauls Valley Democrat (July 1, 2021) “Probate—Courts protecting you after death”

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