I have a will so my estate won’t have to be probated, right?

This question presents one of the most common misconceptions about estate planning. Having a will does not mean that your estate will not need to be probated.

A last will and testament is a legal instrument in which a person sets out who should get his or her property upon death and who will be responsible as the personal representative to see that this is done. A will is not a probate avoidance tool; rather, a will is made in anticipation of probate and is intended to guide the probate process.

Probate is initiated by filing the will along with a petition to probate the will, some other required forms and a nominal filing fee in the Probate Court. If the paperwork is in order, all the beneficiaries in the will and legal heirs of the decedent will be notified that probate has been initiated, and the personal representative named in the will is then appointed by the issuance of letters of authority. All of this can be done without ever having to set foot in the court.

With the letters of authority, the personal representative has the power to consolidate and sell assets, pay debts of the decedent and ultimately, distribute assets to the beneficiaries named in the will. Certain procedures must be followed in carrying out these duties properly, such as waiting out a four-month creditor period before distributing all of the estate assets, preparing a complete inventory of the estate, making sure that income taxes of the decedent and the estate and any estate taxes are paid and when the estate is ready to be closed, preparing a complete accounting from date of death to the closing of the estate.

Although the estate cannot be formally closed until nine months after date of death, the personal representative can pay bills and make distributions to beneficiaries in the interim.

It is indeed possible to avoid probate, but making a will does not accomplish this. Many married couples avoid probate upon the death of the first with jointly titled property that passes automatically to the surviving spouse by right of survivorship and with assets that allow one to designate a beneficiary, such as insurance policies, IRA accounts and annuities.

Another way to avoid probate is through use of a living trust. In states like Maine, however, which have adopted the Uniform Probate Code, it is generally not much more complicated or expensive to probate an estate than it is to properly set up and fund a living trust to avoid probate.

To sum it up and put simply, wills are for probate, and living trusts are to avoid probate.

Kathleen Kienitz is a certified elder law attorney who practices elder law in Lewiston.

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