When dealing with wills in real estate, you often need to go through the probate process in court. However, many people prefer setting up trusts instead of writing wills specifically to avoid probate. Why is it so? And which one is safer?
The question that often arises when it comes to estate inheritance is whether or not you can find a person's will or testament in public records. And while those documents are stored privately when the person is still alive, the situation becomes a little more complicated when it comes to the deceased. It seems that everything is on the internet nowadays, but some documents have to stay secure, don't they? Well, in reality, it's not that simple.
If you need to access your loved one's will or want to secure your own testament, learning more about the probate court records may be helpful.
What Is Probate?
Probate is a law term closely connected to inheritance. You may come across it when trying to prove a will or administer an estate. In such a case, a probate court – sometimes called the Orphans' court – will examine the authenticity of the will and decide who gets the property of the deceased person. If there's no will, the law determines the descendants.
In some states, the probate court also takes care of the guardianships, trusts, and mental health issues – for example, administering involuntary psychiatric treatment.
When is Probate Necessary?
While it may seem that probate is unnecessary in some cases, very often, you'll still have to go through it. When there's a will, it has to be probated so the property can be transferred into the names of the heirs. However, in some states, there are two exceptions: motor vehicles can often be transferred without a probate, and a smaller estate’s probate process takes much less time than the regular one.
The probate is also necessary if the deceased person had shared assets in a property, or if they didn't name any beneficiaries, or if there's no will. In those cases, the probate court relies on the law to designate the heirs and assets.
Are Probate Court Records Public?
Yes, they are. If something is filed in a probate court, anyone can access the records. This means that not only you but your neighbor or a complete stranger can go down and get a copy. However, it can take a minimum effort.
After the person dies, their will or testament can be viewed only after being registered for a probate process. You then need to find out in which court the probate was filed and look for the records online – either on the court's website, county government's website, or online services like Ancestry.com. Be aware that sometimes you may have to pay to get access, and sometimes the online version may not be available.
Often, you may need to go to court to see the records and make a copy of them. In this case, you'll have to apply in person or make a written request (by mail or fax) to obtain the copy and pay a fee, which varies from one to several dollars per page. If you're sending an application by mail, you'll also have to provide a self-addressed stamped envelope so the court can mail you the copies.
How Can You Avoid Probate?
The probate process can take some time, and the court records are public – these factors are enough for some people to want to avoid probate and any disputes. And there are several ways a property owner can make it possible:
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- Set up a living trust – after you die, the trust property is not a part of your probate estate and will be quickly inherited by your heirs.
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- Convert your bank accounts to pay-on-death accounts – when you die, the money will go directly to the beneficiary.
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- Consider joint ownership with the right of survivorship or tenancy by the entirety – in these kinds of cases, the property will go straight to the surviving owner without probate.
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- Gift the property while you're alive.
To Sum Up
Almost always, when you deal with the property of a deceased person, you'll have to go through probate. It's a necessary step for transferring the estate from the decedent to the heirs, and unless the property is not trusted or owned jointly, you can't avoid it.
While probate helps the court make sure the right beneficiaries inherit the estate, it has several drawbacks: the process can take a lot of time, and the court records are public. This means that anyone – you, your relative, your neighbor, colleague, or a complete stranger – can access the documents with minimum to no effort, online or offline.
If you want to make a copy of the court records for any reason, this can be very efficient. However, not everybody likes that, and publicity of the court records may often be the reason why some people want to avoid probate.
(Beata Hardzei)
