The probate process ensures that a deceased person's debts are paid and property is distributed in an orderly way. Probate follows the terms of a will as well as state law.
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by Jane Haskins, Esq.
Jane has written hundreds of articles aimed at educating the public about the legal system, especially the legal aspe...
Updated on: April 9, 2024 · 3 min read
Probate is the legal process for distributing a deceased person's property to their heirs and beneficiaries and settling any debts. The probate process carries out the instructions in a person's will. If there's no will, it follows state law.
When someone dies, their money, property, and possessions—otherwise known as assets—fall into two broad groups for probate purposes. The first group of assets passes directly to a co-owner or beneficiary upon the original owner's death. These assets generally don't go through probate. Common examples include:
The second group of assets doesn't go directly to a beneficiary or co-owner. They may be passed down through a will, or through state laws of intestacy if there is no will. Examples can include:
Without the probate process, heirs and beneficiaries usually can't take legal ownership of these assets. As a result, probate is often necessary even if there is a will.
Though the exact process varies by state, probate follows several basic steps:
After assets have been distributed, the probate is officially closed. However, even after probate is closed, the executor may be responsible for dealing with any complaints or newly discovered assets.
Several factors can influence how long probate takes, including the estate's size and complexity, the state the decedent lived in, and whether anyone objects to the probate petition.
Probate can sound complicated and intimidating, but for most people, it's a relatively straightforward process. Some states even have simplified probate procedures that allow you to settle a small estate without probate lawyers.
The benefit of probate is that it provides an orderly process to inventory assets, pay debts, and get assets to heirs. But you might want to structure your estate plan to avoid probate as much as possible for the following reasons:
One way to avoid probate is to set up a revocable living trust and place your assets in the trust.
If you've been named executor of a will, it's worth exploring what a probate lawyer can do for you. In addition to helping determine whether probate is necessary, a lawyer can handle legal paperwork and advise you on the steps you need to take.
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