Probate is an experience many people go through. However, you'd be surprised how few people know what probate is until they enter the process themselves.
What is probate?
Probate is the process that must be undertaken when it comes time to process a deceased person's will. In most situations, an executor will be named in the will. This makes things a lot easier because the executor is the person who will be responsible for taking charge of all probate-related matters.
The executor will basically oversee the probate process from beginning to end. Within 30 days from the date of death, the executor must file the document with the probate court.
How does probate work?
If the person who died did not leave a will, then the probate court will appoint an administrator on behalf of the deceased person. The administrator will essentially function as an executor. In doing so, the administrator will oversee all estate matters. They will be the recipient of any legal claims that are made against the estate.
Administrators are tasked with the duties of paying off outstanding debts and distributing assets in accordance with state laws. Now, state probate laws vary from one state to the next. That said, the probate process is surprisingly similar throughout the entire country. Ultimately, lawyers do the majority of the heavy lifting.
What happens during probate?
Probate is the process of determining whether the deceased person established a legalized will prior to their death. The main goal is to ensure the appropriate transfer of all assets within the estate. If the deceased person passed away and did not leave any assets behind, then the probate process might not be necessary. It all depends on the specifics of the situation at hand.
It's not always clear as day. For instance, sometimes there is a will but it ends up being deemed invalid. When the will is validated, however, the assets in the estate are then reviewed by a probate court. The court then provides a final ruling regarding the division and distribution of the assets to the appropriate beneficiaries.
In many cases, established documentation exists that contains instructions regarding how the assets should be distributed post-death. In those instances, the executor will be awarded the legal power to act on behalf of the deceased individual.
Now, when people die without a will, in their absence, the court-appointed administrator will need to locate and contact legal heirs. From there, the probate court will assess the assets and determine what needs to be distributed and to whom. There are also state-specific laws that mandate time frames for claiming assets by heirs who step forward.
The distribution hierarchy usually begins with the surviving spouse, if there is one. From there, the children are considered. After that, other relatives may be deemed the appropriate parties for the distribution of the deceased person's assets. Also, if the deceased person had an existing joint account that awarded right of survivorship or owned property to another party, then the surviving partner would automatically gain ownership over the joint assets.
While probate is not a never-ending process, it can still take a long time to finalize. The more complex or contested the estate ends up being, the more time it will take to settle it and fully distribute the assets to the beneficiaries. Also, the longer the duration of probate, the more expensive the legal fees will be. And probating an estate without the presence of a will is even costlier.
While the proceedings of a probate court are publicly recorded, avoiding probate is one surefire way to ensure that all settlements remain private information. If an estate is small enough to bypass the probate process, the assets within the estate can be claimed via alternative legal actions. One such example would be an affidavit.
Ultimately, minimizing the costs associated with probate is prudent. When you have to endure probate, you can rack up a wide array of expenses. Many people who go through probate can expect to pay fees for lawyers, court appearances, professional service hours and administration.
That's why an easily authenticated will is one of the most promising ways to help your loved ones avoid probate. It also ensures that your assets are distributed efficiently and appropriately in accordance with your wishes.
Even though it's easier to avoid probate altogether, it doesn't have to be a daunting process. A detailed will with a clear-cut designation regarding who the executor will be is certainly preferred. Wills can exponentially benefit those who survive you because a will can help them ensure the proper transfer of your property to your heirs.
However, it's always best to seek counsel from a lawyer. That way, you can learn about the specifics of probate according to the laws in your state. And reach out to a financial adviser to receive personalized guidance regarding your estate planning process.
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