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Probate: Having a Will vs Not Having a Will

Dealing with the death of a loved one can be a difficult and painful process. The emotional roller coaster of dealing with death compounds the necessary process of settling the deceased’s estate. One aspect of settling an estate that should be avoided is probate.

Probate is the legal process of settling an estate in a probate court. If a person establishes a will before dying, the executor of the will presents the will to the probate court. The court then determines if the will is valid, listens to any objections to the will (should there be any), and orders the executor to appropriate possessions, lands, monies, and the contents of the will to the proper beneficiaries.

If a will has not been established, the estate is probated according to the law of the deceased’s state of residence and if any minor children are involved, the state determines the caretakers of the children.

The main difference between dying with a will and dying without one is the distribution of the estate. A person with a will has the say of who receives the contents of the estate. A person without a will has no say over the distribution of their estate, but the authority of the estate is given to a court to be distributed in accordance with state law. (Under both circumstances, however, you will not avoid probate.)

Each state differs in probate law, but most are not ideal in following the wishes of a deceased person. Unless a will has been established correctly under state law, the courts have no obligation to follow the deceased’s verbal or written wishes.

If you would like more information concerning probate, is a comprehensive online resource for personal wealth management solutions through wills and revocable trusts (which allows you to avoid probate). Whether your estate planning goals are immediate or long-term, a California certified estate planning specialist will be able to counsel you on the best options available to you to meet your individual needs. Call us at (661) 426-2499.