What is Probate? (Part 1)

Probate is a legal process that passes on your assets to your designated beneficiaries or heirs after determining the validity of your will, if it exists, and the interests of creditors and others who may have an interest in your estate.

What Does Probate Do?

When you pass away, your property must go somewhere. If you have no will and no heirs, your estate could go to the state by a process called “escheat.” Otherwise, your property must be distributed according to your wishes as expressed in your will or go to your heirs according to your state’s laws of intestacy.

Whether you have a will or not, an executor or personal administrator is appointed to be in charge of your estate. Your executor or administrator generally has the following duties:

• Presenting your will in court and proving that it is valid
• Identifying all heirs, locating and notifying them
• Publishing, in some states, a notice of death and that your estate will be probated
• Inventorying your personal and real property
• Hiring property appraisers, if necessary, for real and costly personal property such as collections or antiques
• Filing income and estate tax returns and paying all due taxes
• Selling assets if necessary to pay taxes and creditor claims
• Distributing remaining assets to named beneficiaries or heirs

Does All Property Have to be Probated?

Not all of your property needs to be probated. Most states will allow up to a certain amount, such as $100,000 of property in many states, to pass without court approval or by a simplified procedure. Property that passes to a surviving spouse may also pass in a simplified process.

You can also pass real property through joint tenancy whereby your interest automatically passes to your joint tenants, or by having title to your property in a living trust that passes to your intended heirs upon your passing.

Probate always costs money and delays passage of property to your heirs and beneficiaries. Planning now to avoid probate will benefit your beneficiaries especially if you have real property or a great deal of debt that may not simply paid out of your estate. Consulting with an estate planning attorney can smooth over the process and save your surviving heirs a great deal of expense and frustration.

However, if you find yourself having to probate an estate, an experienced probate attorney can help keep costs under control. As a matter of fact, the fee associated with probating an estate is already statutory meaning that the law determines the limits on fees that attorneys can charge to help you through this process. Whatever, your situation, sitting down and speaking with a probate lawyer is the first step in learning your options and typically costs you nothing for your first meeting. So don’t hesitate, become informed and start planning your next steps.