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Probate FAQ
 
A:Probate is a legal process that takes place after someone dies. It includes:
 
  • proving in court that a deceased person's will is valid (usually a routine matter)
  • identifying and inventorying the deceased person's property
  • having the property appraised
  • paying debts and taxes, and
  • distributing the remaining property as the will (or state law, if there's no will) directs.

Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property.


Q: How does the probate process work? 
 
A: Probate usually works like this: After your death, the person you named in your will as executor -- or, if you die without a will, the person appointed by a judge -- files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.

 

Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them.

 


 
A:No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In California, for example, you can pass up to $100,000 of property without probate, and there's a simple transfer procedure for any property left to a surviving spouse.
 
In addition, property that passes outside of your will -- say, through joint tenancy or a living trust -- is not subject to probate.
 

Q: Who is responsible for handling probate?
 
A: In most circumstances, the executor named in the will takes this job. If there isn't any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person's assets.
 

If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.

 


Q: Should I plan to avoid probate?
 
A: Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can't easily be paid from the property you leave.
 

Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you're young and in good health, adopting a complex probate-avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state's simplified probate procedure.

 

But if you're in your 50s or older, in ill health, or own a significant amount of property, you'll probably want to do some planning to avoid probate.

 


 
A: Probate can drag on for years, and can easily cost your family thousands of dollars -- money that would otherwise have gone to them. Your estate doesn't have to go through probate. You can avoid probate by creating a savvy estate plan:
  • setting up payable-on-death accounts
  • naming beneficiaries, including children, institutions, and multiple beneficiaries
  • naming beneficiaries for retirement accounts, vehicles, real estate, and stocks and bonds
  • special procedures for small estates
  • holding property in joint ownership, and alternatives to joint ownership
  • using a living trust to avoid probate
  • making gifts of property and money

 

 

If you have more questions, please contact us now.