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How Does Probate Work?
The Importance of Understanding Probate and Wills
“There is a general understanding that every adult should have a last will and testament. However, for most people, exactly how that will is used remains a mystery.”
Having a good understanding of how wills are used, how probate works and what other documents are needed to protect yourself and loved ones is key to creating an effective estate plan, explains the article “Understanding probate helps when drafting will” from The News Enterprise.
Differentiating a Last Will and Testament from a Living Will
A last will and testament expresses wishes for property distribution after death. It’s different from a living will, which formalizes choices for end-of-life decisions. The last will and testament also includes provisions for care of minor children, disabled dependents and sometimes, for animal companions.
The will does not become effective until after death. However, before death, it is a useful tool in helping family members understand your goals and wishes, if you are ever incapacitated by illness or injury.
The Roles and Responsibilities in a Will
The will has roles for specific people. The “testator” is the person creating the will. “Beneficiaries” are heirs receiving assets after the testator has died. The “executor” is the person who oversees the estate, ensuring that directions in the will are followed.
The Probate Process and Its Implications
What Happens When There is No Will
If there is no will, the court will appoint someone to manage the estate, usually referred to as the “administrator.” There is no guarantee the court will appoint a family member or relative, even if there are willing and qualified candidates in the family. Having a will precludes a court appointing a stranger to make serious decisions about a treasured possession and the future of your loved ones.
Opening a Probate Case and Filing a Will
A will is usually not filed with the court until after the testator dies and the executor takes the will to the court in the county where the testator lived to open a probate case. If the person owned real estate in other counties or states, probate must take place in all other such locations. The will is recorded by the county clerk’s office and becomes part of the public record for anyone to see.
Asset Distribution and Probate Avoidance
Named Beneficiaries and Probate Exemptions
Assets with named beneficiaries, like life insurance proceeds, retirement funds and property owned jointly are distributed to beneficiaries outside of probate. However, any property owned solely by the decedent is part of the probate action and is vulnerable to creditors and anyone who wishes to make a claim against the estate.
Protecting Your Family and Assets with a Comprehensive Estate Plan
The best way to protect your family and your assets is to have a complete estate plan that includes a will and a thorough review of how assets are titled so they can, if possible, go directly to beneficiaries and not be subject to probate.
Secure Your Legacy with Professional Estate Planning Guidance
In conclusion, understanding probate and the intricacies of estate planning is crucial for protecting your loved ones and ensuring your wishes are carried out as intended.
With the help of experienced estate planning attorney Benjamin Long at Schlagel Long, you can create a comprehensive plan that addresses all aspects of your estate and avoids potential complications. Don't leave your family's future to chance; contact Benjamin Long today for a free consultation to discuss your estate planning needs and safeguard your legacy. Call now and take the first step towards peace of mind for you and your family.
Estate Planning Legacy Planner
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Attorney Benjamin Long
Benjamin Long is the founding attorney at Schlagel Long, LLC, a probate and estate planning law firm based in Olathe, Kansas. Ben focuses specifically on guiding families through the probate process, clearly explaining the roles and responsibilities involved, such as executors, administrators, and beneficiaries. He understands that probate can feel overwhelming, and his expertise helps families navigate the legal procedures required when a loved one passes away—with or without a valid will.
Ben emphasizes the importance of proactive planning to minimize the challenges associated with probate, including strategies for asset titling, beneficiary designations, and thorough documentation. He provides practical advice on how families can effectively protect their assets and loved ones from unnecessary complications, ensuring their legacy is preserved according to their wishes.
Benjamin earned his Juris Doctor from Washburn University School of Law, receiving a Certificate in Advocacy and induction into the prestigious Order of the Barristers. He holds a Bachelor of Science from Kansas State University. Recognized as a Super Lawyers Rising Star and recipient of Martindale-Hubbell’s Client Distinction Award, Ben offers authoritative counsel rooted in deep experience and compassionate understanding of probate law and estate planning.
Outside his practice, Ben teaches as adjunct faculty at Washburn Law School and coaches the Kansas State University Mock Trial Team. He resides in Olathe with his wife, Dr. Andra Long, and their two daughters.
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