Unlike the assets placed in a trust, the assets left to beneficiaries in a will must pass through the public process of probate before being distributed. Although the expediency and privacy trusts allow can be important, it is important to know that probate is not inherently bad, and can turn out to be helpful in some circumstances.
Public Record
A good estate plan is based on the specific needs and circumstances of the person creating it. While trusts can meet a variety of estate planning needs, including setting aside funds for one’s own potential care needs, wills have an important role in outlining “the distribution of finances, possessions, and property after an individual’s passing.” When a will is written, a fiduciary, known as an executor or personal representative, is typically designated to take responsibility for wrapping up the affairs of the testator (aka person who creates a will), as expressed in the will. Upon the death of the testator, the first official act of the executor is to enter the will, with a copy of the death certificate, in the local probate court—which in some states is referred to as surrogate court. At that point, the will becomes a matter of public record:
The rationale behind making wills public lies in ensuring fairness during the probate process. With numerous potential claimants to an estate, transparency is essential. By granting public access to wills, individuals with legitimate claims, such as creditors or overlooked beneficiaries, can assert their rights within the designated time frame, governed by state law.
Prior to probate, wills remain private documents. Individuals may revise their wills multiple times during their lifetime, but only the final version becomes part of the public record. Usually, the initial will is held by the estate planning attorney or kept securely by the testator, who may share copies with family members….Although probate courts have the authority to keep wills private in exceptional cases, this is rare…. .For interested parties like heirs or creditors, locating a will within public records involves identifying the probate court that handled the estate.
What If There Is No Will?
The potential heirs and creditors of a deceased person who did not make a will, are also likely to find themselves working through public probate protocols. In this case, the court appoints a fiduciary, often referred to as an administrator, to take responsibility for closing out the affairs of the deceased. Importantly, whether or not a will has been made, both executors and administrators must adhere to probate court supervision to ensure debts are paid before any assets can be distributed. Once all claims are resolved, assets are distributed in accordance with the will, or by following the state laws of intestate succession.
Specific probate procedures vary a bit by state, but generally the expectations and responsibilities of executors and administrators are similar. For example, in Wisconsin the steps of probate unfold in this sequence:
- The Will is filed with the probate court and confirmed as valid.
- A petition to initiate probate is filed.
- All beneficiaries are located and identified.
- The identified beneficiaries must consent to the appointment of the executor, and once all have consented, then the court will appoint the executor to serve. The court gives the executor permission to gather, evaluate, and manage the testator’s assets.
- Lists of the deceased’s assets, debts, bills, and taxes are compiled and submitted to the court.
- The testator’s outstanding debts and taxes are paid from the testator’s assets.
- The remaining assets are distributed to the beneficiaries.
- The estate is closed and probate ends.
In every state, executors must “work in the best interest of all beneficiaries without showing partiality,” because as fiduciaries, they are legally obligated to ensure the affairs of the estate are properly handled, in accordance with the terms of the will–and the law. Given their significant responsibilities, in most states, it’s typical for executors to “have bonds to ensure their trustworthy behavior in their roles. These bonds guarantee that all the estate debts will be satisfied and that the remaining assets will be properly distributed to the appropriate heirs.” Information about executor bonds, as well as help obtaining them, and all types of fiduciary bonds, is available at Colonial Surety Company:
Estate Law?
With a few clicks on The Partnership Account® for Attorneys, lawyers everywhere around the country can quickly help clients secure fiduciary and court bonds, on the specific obligee required forms.
Just select the bond needed, send it to your client for payment, and then download, e-file or print the bond. Our fiduciary bonds include: administrator, estate, executor, guardian, personal representative, probate, surrogate, trustee, conservator and the list goes on. Court bonds include: appeal, supersedeas, injunction, replevin, receiver and more.
Easy, speedy court and fiduciary bonds here:
The Partnership Account® for Attorneys
Colonial Surety is rated “A Excellent” by A.M. Best Company, U.S. Treasury listed, and licensed for business everywhere in the USA. Our customers have awarded us a 4.8 Trustpilot score.Whenever and wherever you need a bond, trust Colonial: www.colonialsurety.com.