What Is Probate and Things You Need to Know
Probate is an essential aspect of estate planning that occurs when someone passes away. It’s a legal process that verifies the last wishes of a decedent, including how they wanted their assets distributed and other important matters. Before a decedent’s estate can be administered, probate must take place in order to confirm the validity of their last wishes and legal directives. Knowing what it is and the ins and outs of probate is an important step when planning for the future.
What is Probate?
At its core, probate is the legal process of validating a decedent’s estate and wishes following their passing. Depending on the complexity of their estate and any issues that arise, this process can take anywhere from a couple of months to an extended period of time. Whether you’re the executor of an estate or a beneficiary, understanding this process is important.
The Purpose of Probate
The purpose of probate can be broken down into three key things.
First, it determines if a will exists and is valid. The court will look at factors such as if the decedent was of legal age, signed properly, was of sound mind, and was of legal capacity when signing. The court then determines if the document is valid and accepted as the last will and testament of the decedent.
Second, it identifies and collects the decedent’s assets. This includes locating and accounting for each asset listed in the will, and bringing them all together. This step is to confirm their value and marital status if they are jointly owned.
Third, it distributes the assets. Once the court has full access to the decedent’s assets and documentation, they will work with the executor of the estate to distribute the assets according to the last wishes of the decedent.
Probate Process
The probate process usually follows the same steps although each state has their own unique laws governing the process. Generally speaking, the process looks like this:
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Determine if Probate is Necessary – Depending on the circumstances, it may not be necessary. There are a variety of reasons why this could be the case. This step is necessary before further proceedings can occur.
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File the Necessary Documents – This step establishes the estate in the proper form with the court which signals the start of the probate process.
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Provide Notice to Beneficiaries & Creditors – This is to alert them to their rights and allow for any objections or claims to be filed.
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Collect the Assets & Pay Any Debts – This is an important step as it involves speaking with banks, lawyers, and other organizations to determine the assets that are part of the estate.
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Pay Estate Taxes & File the Necessary Forms – Depending on the estate, this may be necessary. If so, the executor is responsible for filing any returns and making any payments that are necessary to complete the process.
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Distribute the Remaining Assets to Beneficiaries – Once all of the other steps have been accomplished, the remaining assets can be distributed according to the decedent’s will.
Legal Representation and Professional Advice
The probate process can be complicated, so it is strongly recommended that you seek legal representation or professional advice. This will help ensure that all steps and proceedings are handled properly and that all of the requisites are met in a timely manner. Having legal counsel or professional advice can also help speed up the process and reduce the amount of stress for involved parties.
Understand That Probate Can Be a Lengthy Process
The length of probate often varies from state to state, and from one estate to another. In some cases, it goes fairly quickly. In others, it may be a lengthier, more involved process. It’s important to have patience, and to understand that in complex cases, it may take some time for all of the loose ends to be tied up and for the process to end.
If you’re considering estate planning and want to learn more about probate, make sure to consult with an experienced attorney. They can provide you with the guidance and insight that you need to make the best decisions possible, and to ensure that all of the legal proceedings are handled in the proper manner.
