What is Probate?
Posted Tuesday, Jul 24, 2012 by
What is probate? And why should you be concerned about it?
Here’s a quick Q&A concerning this important issue.
Q. What is probate?
A. Probate is the process by which the contents of a person’s estate are distributed upon their death.
Q. Doesn’t a will already do that?
A. The probate process: 1) Establishes that a will is valid and 2) Establishes a process for executing the terms of the will in an orderly fashion.
Q. Who is in charge of the probate process?
A. The rules for probate are established by the individual states and administered by a probate court within each state.
Q. What if a person dies without leaving a will?
A. This is called dying “intestate.” Generally, if the deceased has a surviving spouse – a husband or a wife – or children, the assets of the estate go straight to them. But if there is no surviving spouse or children, then the state probate court determines how the assets are distributed according to its rules.
Q. What is the usual process for distributing assets under the rules of probate?
A. Again, this varies from state to state. But usually, the contents and value of the estate are determined by the court. Then, from those assets, any outstanding taxes are paid to the state and federal government, and any creditors are allowed to claim outstanding payments. Finally, if any assets – cash, real estate, jewelry, etc. – are left, they are distributed to the beneficiaries as directed in the will.
Q. Who is in charge of doing this distribution?
A. Distribution is usually done by an executor – a person named in the will – or by an officer of the court.
Q. How long does probate take?
A. That can depend on the state where the deceased lived, the size of the estate, the number and size of outstanding taxes and/or debts and the number and location of beneficiaries.
Q. Can probate be avoided?
A. People with larger estates are usually able to avoid probate altogether by putting their assets into a family trust, which then becomes the owner of the assets.
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