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What is Probate?

Probate is a court-supervised legal process by which assets left by a deceased person are distributed. An individual's assets are anything he or she owns that has a value at the time of death, such as real property, personal property, and cash. If an individual has left a will, the person petitioning to be the executor must prove the will's validity. It is required to file a petition within six months of the time of death. The probate judge will need to approve an executor or personal representative (PR) named in the will to handle the distribution of assets. From the date the petition is filed, an executor or administrator is usually appointed within four to five weeks. The probate process involves the location and valuation of all assets. After the assets are valued, creditors, taxes, and debts are paid, and the rest of the probate estate is distributed to the legal heirs and beneficiaries. Finally, the probate court judge approves the distribution of assets to beneficiaries. The entire probate process can last for a year or longer depending on the number of assets, debts, and the cooperation of heirs and beneficiaries. The probate process can be very complicated and costly due to administrative and attorney fees. Probate laws may vary from state to state; it is best to seek a probate attorney to help avoid the pitfalls of executing a will.

What is the Probate Process

After a person's death, the person named in the will as the personal representative (PR) will petition the probate court to be appointed the executor or executrix of the estate. It is possible for more than one person to be named the personal representative in a will. Joint Executors will collaborate to oversee the probate process. A personal representative's (PR) responsibilities consist of presenting the court with a list of all of the deceased's assets. The (PR) will also list all of the beneficiaries listed in the will. Finally, the personal representative will notify the beneficiaries listed in the will. Creditors are also given public notice of the probate proceedings to claim any debts owed to them from the deceased person. Four months after actual notice, a creditor has to file a claim against the estate. The probate judge determines whether the deceased person owes any debts or not. They also determine how much the probate estate is worth and how to distribute the assets. To settle outstanding debts, the executor may have to decide whether or not to sell any real estate, securities, or other property. A will does not always need to be probated. For example, a spouse often inherits the deceased's bank accounts and property if the deceased owned such accounts together with that individual. The surviving spouse would become the beneficiary. When a person dies with very few assets, such as personal belongings or household goods, these items can be distributed without the supervision of the court to the rightful beneficiaries.

Probate Without a Will

If a person dies without a will, the court appoints somebody to administer the estate. The probate judge will appoint an administrator to manage a deceased person's assets. The administrator has the same responsibilities as the executor or executrix of the estate. The administrator will notify heirs and creditors of the probate proceedings. The administrator's responsibility is to take possession, inventory, and preserve the deceased's assets. The administrator also must identify the heirs and next of kin of the deceased person. The sale of real estate may be necessary to pay creditors' claims, taxes, and administration costs. After the debts of the probate estate are settled, the remaining assets will be distributed accordingly. 

Estate planning is crucial. More people are starting to get educated on establishing Revocable or Living Trusts to avoid probate. Probate is often more simplified if the deceased person established a Living Trust that clearly defines how they wanted their assets distributed at their time of death.