What Is Probate and Can it Be Avoided?

Let’s start with the definition of Probate:

Probate is the court process by which a WILL is proved valid or invalid.  If there is no Will, it is the legal process where the estate is administered after someone dies.

If a person dies without a Will its called intestate.  The court appoints a Personal Representative to administrate the deceased persons estate. This Representative is responsible for locating any assets and determining their value.

When locating assets, the Representative may request:

• Bank Statements
• Life Insurance Policies
• Car Titles
• Deeds
• Deceased prior year’s tax returns
• Personal assets such as jewelry, artwork or collectibles

Next, notice of the death is published to provide notification to potential creditors. Legitimate creditor claims are identified and paid from the estate.  In some cases, assets must be sold to satisfy these obligations. Funeral expenses, final bills (such as utilities, legal fees, mortgage payments, etc.) are paid from the deceased’s assets.  Final income tax and estate tax bills are paid from the deceased’s assets as well.

Once the creditors and final bills are satisfied, then the remaining assets are transferred to the beneficiaries according to State law.

If there is a Will, it’s admitted to a probate court for a hearing. Beneficiaries and heirs are notified of the hearing. Also, it may be published in a local newspaper to notify any potential creditors of the deceased.

Can you avoid probate?

With proper planning – yes.  Creating a Trust and utilizing proper beneficiary designations is key.  Read more on how to avoid probate click here>>

So, how long does it take for all this to happen?

It depends on how complicated the estate is. It may take a couple of months, or it may take up to a year or more. There are many factors. Read more here>>

Should I work with a Probate or Estate Attorney?

An estate or probate attorney can certainly help navigate the entire process. However, be sure to identify the cost upfront so there are no surprises.

The bottom line is that a properly drafted Will or Trust is important.  Keeping an organized list of debts, property and desired last wishes will make it easier for your loved ones to navigate the process after you’re gone.

For more on whats likely to happen to your stuff without having a Will read here>>