Although many people try to avoid probate, the probate process may be useful in certain situations. For example, if you fail to transfer assets into a living trust, probate may be needed following the death of a married person to clear title and transfer the assets into the name of the successor trustee of the living trust.
Some families, due to feuding or other dynamics, may prefer the court supervision of the probate process. A young married couple with a modest estate may prefer a will that creates contingent trusts for minor children in the event both parents die (or in the case of a single parent.) Finally, the probate process contains family protection such as probate homestead and family allowance provisions.
The family allowance, which is statutory in nature, places the welfare of the decedent's surviving family above that of the decedent's named beneficiaries or creditors. The statutory policy is to protect the decedent's spouse and minor children (and, in some cases, adult children and parents) when the decedent failed to do so or when the decedent's creditors might exhaust the estate to the disadvantage of the statutorily protected individuals. A spouse or children of the deceased could open a probate in order to obtain the protection of the family allowance statute. Beware - the decedent’s estate plan may provide some benefits to a spouse or minor children that would terminate if the spouse or children sought a family allowance under the family protection statutes.
The probate homestead protects the family home for the benefit of the decedent's spouse and certain other dependents of the decedent, including minor children. The probate homestead also protects the family home from decedent's general creditors, from non-family beneficiaries named in the decedent's will, and from the decedent's more distant intestate heirs. Probate homestead issues often come up when the decedent tries to leave the residence to someone other than a spouse or children. The probate homestead may trump a devise in favor of the current spouse and minor children.
Hopefully, this discussion has shed some light on the probate process. Probate is not always a bad thing.
