The process of dividing assets posthumously is not a process that anyone enjoys. It can be complex, and there may be tensions in the air regarding the division of an estate. Some people may feel slighted by what they’re left with, either by a will, or by the laws of a state. The probate process undertakes a different path when guided by a legal document such as a will, or in cases where a will is absent.
If you’re curious about the difference of these probate processes, we’ve included an explanation of both below.
The probate process without a will can take quite a bit more time (and money) than in cases where a will is available. Generally, there are some laws in most states that leave the spouse with at least half of your personal assets, and the majority of “real” property. The remaining properties are given to descendents/children. In cases where there is no spouse, children are able to inherit all of the assets, or in cases without a spouse or children, the parents will be the beneficiaries. If no parents, children, or spouse are present, then siblings will be the beneficiaries of all assets. These of course are all subject to the local laws of your region.
You can start to see how complicated this process can get if there isn’t a will. Kentucky specifically has some defining laws in the differentiating probate cases. If you’re currently about to undertake the probate process and aren’t sure where to start, Bunch and Brock are professional probate lawyers in Lexington, KY who offers a detailed article explaining the process. It’s important to have lawyers who specialize in probate and are able to handle the proceedings with experience.
Half relatives are just as entitled to property as other relatives, and the probate process without a will, gives them as large a share as “full” relatives. How the property is, split can become complicated if you haven’t named any beneficiaries, and there may be disagreements by family members over who is entitled to what items. Probate proceedings in court can take half a year, to just under a year to complete and they can be expensive. In any case, having a will definitely decreases the amount of time that will be spent in probate court.
Although there are basic laws that allow for the quick division of assets this process can take longer depending on the size of the estate. If any property is held that generates income, this will also increase the length of the process. For much larger estates, proceedings can take a few years. The legal expenses associated with these proceedings can also escalate to larger amounts, and you’ll want to employ competent legal authorities who have a good reputation with this form of law.
With the above mentioned issues, it makes sense that the probate process tends to run more smoothly with a will. A will allows you to mention an executor, that is someone who will divide your assets according to your will’s wishes. You may also mention the beneficiaries of various assets and properties. By having your will signed by two witnesses who sign it in front of each other, as well as having it notarized, you will speed up the probate process in court. A notary is a person who is a person who is legally authorized to validate legal documents as a witness. The court will contact the witnesses in order to verify the validity of the will. A will may be destroyed at any point in time, or made null by generating a new will that voids the previous one.
There are some cases where a will may be contested by beneficiaries, or spouses who were disinherited. In cases where this may be an outcome, speaking to a lawyer prior to creating a draft would be recommended. Generally if the will is signed and notarized properly and according to state laws, there is little to no room for it to become subject to becoming contested. If certain assets are not mentioned within the will the courts may adhere to “intestacy” state laws to divide assets to beneficiaries. These are the same proceedings that would take place in cases where there is the absence of a will.
Having a legal document that details the beneficiaries, and the executor of the will reduces the probate time period dramatically. However, there are cases where not all of the properties will be mentioned in the will and these cases may lead to disagreements. This will increase the probate period within the courts. In cases where a will is contested for various reasons, or the disinheritance of a spouse, the probate period will also be increased. Ultimately, speaking to a lawyer prior to drafting a will in complicated situations is the best safeguard towards creating a complex issue in the future. There are only a few legally valid ways of contesting a will, so this still drastically decreases the problems that may happen without one.
Having a will certainly decreases the complexity associated with probate proceedings exponentially. However, in cases absent of a will, there are generally state laws that will divide assets according to spousal relations, or blood/married relatives. This may lower the stress associated with the drafting of a will because you think your assets will be divided fairly by the state. But ultimately a will decrease the expense and time placed on relatives dealing with the probate process, such as a relative who hasn’t been in the picture stepping in and claiming their fair share. Although having a will still leaves room for other problems, such as those who would contest it’s validity, these may only be done for valid legal reasons during the probate period. Drafting a will with the advice of a lawyer is recommended if you foresee any potential complications, and even if you don’t it may be better to be safe than sorry.