Understanding Probate}

Submitted by: John Nazareno

Probate is known as the legal process that settles the estate of the deceased and how the property of that person should be distributed. The probate process can really vary from state to state, so these are just general guidelines. If you are involved in the probate process you might want to seek legal counsel with an attorney that has experience with wills, or even those that have experience in probate court to protect your rights and really understand the probate system in your state. If you are looking for general information, you have come to the right place. Every probate is different because there are different sums of money, different pieces of property, different debts, and different people that want or do not want to take part in the process. Probate does not have to be an ugly process if all parties can agree to work together to preserve the memory of their deceased loved one. Weve all seen the ugly probate hearings on television, but real life neednt be so dramatic if the key players do not allow it to become this way.

In most states, if someone has passed away without completing a will or trust, the property of the deceased will automatically become the property of his or her spouse and there is no need for probate. Yet, there are cases where the surviving spouse does not automatically get the deceased individuals property, and then it is necessary to divide the estate of the deceased, whether or not the decedent had a will. The probate court, the court that has jurisdiction over such matters, will help those involved decide how the property is divided, and that it is divided in a legal manner. The laws vary from state to state, and this is where the division of property can get quite tricky if you or the people are you are working with do not know the laws well.

A will generally names an executor, which is a person that has the huge task of ensuring that the will is carried out according to what the deceased wanted. Obviously, the most common job of the executor is to organize the whole assets with the help of the probate system. If there is not a will and there is not an executor of the estate, then the probate court or another court that has jurisdiction can appoint an executor. The appointed representative of an intestate estate is called an administrator instead of an executor. If the representative of the estate is anyone other than the named executor they are known as the administrator with the will annexed or administrator c.t.a. from the Latin phrase cum testamento annexo.

What to expect during the probate process

The first task of the executor or administrator is open the case with the court. This process differs from state to state, but is generally not all that difficult. Next, the executor will need to inventory and collect the property of the decedent. Some of the decedents property will not be involved because they will pass through contracts from one person to another, so there is no reason to probate these items. Items such as life insurance policies, bank accounts, or other things that clearly name a beneficiary or have a payable on death clause that so names another person will not be a probate issue they will simply transfer to the named individual. After all of the assets have been inventoried and organized, the executor will pay any debts and taxes that are owed. Then, the executor has the task of actually distributing the remaining property to the beneficiaries of the decedent as they have been instructed to do so in the will, or if there is not the will, according to the law.

It is not uncommon for there to be disputes during this process. Anyone can make a claim on an estate by petitioning the executor or the court. If the court rejects the claim, the individual with the claim may file a lawsuit to attempt to prove their claim and collect the money or the objects that they are saying they are entitled to. If there is a lawsuit, the court is more inclined to treat the probate process more formally, which makes the process much more difficult as it must approve of every single transfer of property in the will.

How to avoid probate

Unfortunately, probate can take quite awhile. It is not uncommon for the probate process to take more than a year and for all property to be distributed. The best way for people to avoid putting their loved ones through the probate process is to establish a living will. A living will is a separate entity that enables a person to transfer ownership of all of his or her real property such as houses and cars from him or herself to a trust that can be revised at any time. If the person passes away, the people named as the beneficiaries in the trust are now the owners of the trust and the property mentioned within. The great thing about the living trust is that its not a public process, so it really helps to preserve the privacy of the deceased as well as his or her family members. When probate is required, an estate tax is generally required as well and a living will can help avoid this, too. While a living trust may reduce the estate taxes, some will generally have to be paid regardless of whether there is a living trust or not, but every little bit helps!

Because probate can take a long time, its understandable that people would want to avoid it. The problem is that avoiding probate takes foresight that many of us simply do not have. Living wills and trusts are the best way to help you loved ones avoid the stress and disheartening experience of probate, so plan ahead and see if you cant establish how things should be and who should get what when you pass away.

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