The Basics Of Probate

If you’ve been reading about wills or trusts you have most likely come across the term probate. Clearly, this is a central issue in estate planning, but what exactly is probate?

Probate is a legal process that finalizes an individual’s personal affairs after his or her death. It includes:

  • Proving to the court that the individual’s will is valid
  • Identifying and inventorying the deceased person’s property
  • Conducting a property appraisal
  • Paying any debts or taxes owed by the individual
  • Distributing the individual’s property according to the provisions set forth in his or her will

The executor—or an attorney and the executor—can handle the paperwork and court appearances included in probate. Most individuals choose the latter, as probate attorneys can make the entire process much simpler. Probate attorneys can be expensive, however, because they often charge a large percentage of the overall estate as their fee. If you wish to avoid these additional estate costs, try to find an attorney who will agree to work with you for less than the normal fee, or find a general executor’s handbook that helps the executor complete the process without an attorney.

Generally, the probate process occurs as follows:

  • The executor (if the deceased had a will) or court-appointed representative (if the deceased did not have a will) files papers with the probate court.
  • The individual proves the validity of the will and gives the court a list of the deceased’s property, debts, and estate.
  • Relatives and creditors are officially notified of the death.
  • During the year it takes for probate to conclude, the executor or representative must find and manage the deceased’s assets.

Luckily, there is some property that passes through probate, including a simple transfer of property to a surviving spouse, and any property held in joint tenancy or a living trust.

Because the probate process is time-consuming, expensive, and usually unnecessary, many individuals choose to avoid probate altogether by leaving their property in the form of trusts rather than wills. An individual who has a significant amount of property, or who does not wish his or her estate to become public record, should look into creating a trust to avoid probate. Sometimes probate can be beneficial, however, such as in the case of family members who don’t get along or when the deceased has outstanding debts that can’t be easily paid.

© Copyright FamilyCare America, Inc. All Rights Reserved.

You are in the
Legal Matters
Click for related topics:

Advanced Directives
Fraud & Abuse
Power of Attorney
and more...

Caregivers Handbook

This handy guide provides resources, checklists and worksheets
 - all in one place.