What Is Probate and How Can You Avoid It?

Probate is an important legal mechanism that dictates the distribution of assets after a person’s death, specifically within a probate court and with a probate judge presiding over proceedings.

Surviving families and other interested parties usually trigger a probate process to cover issues relating to the deceased individual’s estate settlement. Interested parties typically hire a lawyer to represent their interest as well. In many cases, the estate pays for the legal fees with a fund set aside to handle probate costs.

How long the probate process takes depends on the quality of the estate planning already in place as well as on the state where the probate process is occurring, but the entire probate process is likely to be completed within six to nine months, according to the American Bar Association. It isn’t always a clean and efficient process, but it is a legal way to properly dispose of an individual’s property after their death with a stamp of approval from a probate court.

By and large, the executor handling the deceased individual’s estate will begin the process and the legal end of the probate process takes over there, although much depends on the state where you reside.

The steps involved in probate are as follows:

Step 1: File a Petition – The estate’s executor will first file a request for probate in the city, county, or town where the deceased resided.

Step 2: Get the Word Out  –  The executor will then need to send a notice that the deceased individual’s estate is officially in probate to all applicable beneficiaries, heirs, debtors, and creditors.

Step 3: List All Inventory Assets – The estate must now gather, list, and present a numerical value for all of the deceased’s assets and deliver them to the probate court.

Step 4: Pay the Bills – The executor will need to pay any outstanding bills or debts owed by the estate. (If the amount of money in the estate won’t cover all the bills that need to be paid, the probate court will likely step in and establish a priority list of which parties owed will be paid first.)

Step 5: Handle Any Tax Returns – The estate may also have existing tax returns that need to be completed, signed and filed with the federal, state and local government, if needed.

Step 6: Pay the Heirs – The executor can now distribute the remainder of the estate to any heirs, per the will’s instructions.

Step 7: Close the Estate – Finally, the executor will file all necessary paperwork with the probate court and file to close the estate.

It is worth noting that the executor handling an estate’s financial assets will likely come across areas where big decisions will need to be made and creative strategies will need to be utilized.

Avoiding probate should typically be the goal of any estate executor or beneficiary as it costs two precious commodities – time and money. It also makes certain details of the estate public by going through the court system.

If possible, create an estate plan that avoids probate by using estate planning documents like a living trust – or if you give away your assets while you’re still alive, you will be able to bypass probate court.

It may also be possible to avoid probate if your estate is too small to qualify for probate as many states offer an exemption for an estate valued below a certain asset figure.

You can also establish joint-ownership contracts with a spouse or family member that allows the transfer of assets without having to go through probate.

An estate-planning attorney can walk you through that and other “probate avoiding” financial moves and save you time, money, and privacy by avoiding probate court. Contact us at Wilson and Wilson Estate Planning and Elder Law, LLC, 708-482-7090 or wwilson@wilsonwilsonllc.com