Due to its notorious reputation, people would want to avoid probate. While most would agree that avoiding probate is good, it is still important to understand the process in order to find out what estate plan will suit you.
What is Probate?
Probate is a process that deals with the distribution of assets and dealing with debts left by a person who died. It is generally supervised by the court known as the probate court. The term probate can be used to refer to the legal process, the court which handles the process, or the distribution of the assets.
The probate process can include all aspects of estate administration, such as:
Proving the validity of a will, if it exists;
Choosing an estate administrator, executor, or representative;
Totalling all assets both in and out of the estate;
Paying all applicable estate taxes and other debts;
Identifying all heirs and other relatives; and
Distributing any remaining assets to the heirs as described in the will or intestacy statutes.
Probate generally begins when the deceased’s representative files a petition along with the death certificate in the probate court. The process generally ends when the court formally closes the estate.
Probate: Pros and Cons
The many disadvantages are what drive people to try to avoid probate — specifically because probate is time-consuming and expensive. In many states 30 to 90 days are required as waiting periods as part of probate. And the process may take longer if a relative or potential heir decides to contest the will or the court’s asset distribution. In addition, the court, attorneys, assessors, and other professionals involved all charge fees for processing an estate. These fees typically come out of the estate itself.
Surprisingly to some, there are some benefits to the probate process. There are jurisdictions where probate process may be required so check with a local probate attorney. The formality of probate court often gives some degree of certainty to the deceased’s family. If there was ever a question about whether a will is valid or about the worth of a particular asset, the probate process will find an answer.
Know Your Local Laws
Probate, estate planning, and intestacy law is governed by the states. What may be legal in your state may not be legal in neighboring states. Be sure to check your state’s laws or your local court system’s policies before making any estate planning decisions. If your estate looks like it may be complicated, whether it’s due to the estate’s size, the type of assets your estate will have, or the number of potential heirs you have, it’s best to consult with a local estate planning attorney.