Understanding the Probate Process

Probate is a legal procedure in which a court determines if a deceased person left a will and if that will is legally valid. If there is no will, the probate court must decide what to do with the estate. 

If there is a will, the probate court is responsible for officially appointing the executor and working with this person throughout the probate process. Once probate is finished, the executor distributes the estate to the beneficiaries listed in the will. 

The process of probate can take several months. The exact timing depends on the size of the estate and any complications encountered while validating the will.

Probate Steps

The process of probate usually happens in the following stages:

  1. The will custodian, usually an attorney or the presumed executor, presents the will to the court within 30 days of death 

  2. The court officially appoints the executor of the will

  3. The executor begins collecting all necessary financial and legal information related to the estate

  4. The court tests the validity of the will; witnesses may be called to testify that they signed the document 

The executor essentially creates a type of inventory of the estate. They also submit copies of financial documents and any deeds or titles to the probate court. Using a Self-Proving Affidavit in the will helps speed up the process by validating all signatures.

Probate ends when the will is proven legally valid and the estate has been properly inventoried. After debts against the estate are paid, the remainder is distributed to the beneficiaries. 

Probate Exceptions

While much of the estate must go through probate, there are a few exceptions:

  • Any jointly-owned property automatically transfers to the surviving owner

  • Any assets or property that are part of a Living Trust are not part of probate

  • Any financial accounts that directly name a beneficiary are exempt from probate

How to Avoid Probate

You can save time and money by avoiding the probate process. Here are a few options:

  • Add a joint owner to any property. Ownership interest will automatically transfer to the surviving owner.

  • Give away property or items in your estate before you die.

  • Add direct beneficiaries to financial accounts and insurance policies. The assets will automatically transfer to those parties after death.

  • Transfer real property to beneficiaries with a Transfer on Death Deed. This only goes into effect after the owner dies. 

  • Create a Living Trust and add assets and property for your beneficiaries. Living Trusts are exempt from probate.

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