Last Wills and Probate Court

Last Wills and Probate Court

Probate is the legal process through which the court decides how your property will be divided. If you have a last will, the court will review that document to determine your wishes and will follow those wishes unless the last will is successfully contested by your heirs. If you do not have a last will, the court will assign someone to manage your estate and its distribution.

Some people think that having a last will allows them to avoid probate. This is not true. A last will is used in probate to determine who receives what property, who is appointed as guardian to any minor children, and who will be responsible for carrying out the last will's requirements. Probate will not be required in many states if the value of the estate is less than $50,000. However, if a last will includes real estate or provides for minor children, a formal probate action is generally required.

Probate can become very expensive. For example, if you die without a last will, the court will appoint an administrator. The administrator will inventory and collect your property, pay any debts and taxes owed, and distribute any remaining property according to the laws of your state. Each of these steps takes time and money, and the expenses will be reimbursed out of your estate. In addition, the court may approve hefty fees (sometimes between 5-15% of the total value of your property) to fund the probate process.

If you are looking to avoid probate entirely, you may want to explore other estate-planning devices. Some common devices used to avoid probate are joint tenancies, pay-on-death accounts, and living trusts.

 
  • What is a Will?
    A last will is a document that you create to direct the management and distribution of your property and provide for the care of your minor children after your death. The importance of a last will cannot be overstated. A last will is arguably the most important legal document that the average...
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  • Leaving Property to Heirs in a Will
    A typical last will contains two types of gifts: specific and general. Specific gifts, which leave a particular object or dollar amount to a particular person, are optional, but are generally the first items of property that are distributed from a last will. A specific gift might read: "I leave to...
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  • Last Wills and Probate Court
    Probate is the legal process through which the court decides how your property will be divided. If you have a last will, the court will review that document to determine your wishes and will follow those wishes unless the last will is successfully contested by your heirs. If you do not have a last...
    read more
  • Joint Tenancy
    Property that is owned in joint tenancy with right of survivorship does not pass under a will. If a will gives property to one person but it is already in a joint account with another person, the will is usually ignored and the joint owner of the account gets the property. The property in the...
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  • Overruling Your Will
    If all property is in joint ownership or if all property is distributed through a will, things are simple. But when some property passes by each method, a person's plans may not be fulfilled. Example 1: Bill's will leaves all his property to his sister, Mary. Bill dies owning a house jointly with...
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  • Tenancy in Common
    Property that is owned by more than one person but not owned in joint tenancy with right of survivorship or in tenancy by the entireties is often owned in a tenancy in common. This means that each person owns part of the property (such as one half or one third), and upon each person's death, the...
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