HANDLING PROBATE

WHAT IS THE PROCESS OF PROBATE?

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The probate process is the legal process through which the decedent's assets that are not automatically transferred to their heirs by contract or law are retitled in the name of heirs. The probate process can be described in brief as the legal proceeding that serves to prove the validity of an existing will, supervise the orderly distribution of a decedent's assets to heirs, assure heirs that they receive clear title to property, and protect creditors by ensuring that valid debts of the estate are paid prior to distribution of assets to heirs.

WHAT NEEDS TO BE DONE WHEN SOMEONE DIES WITHOUT A TRUST?

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When a person passes away, the first step in the probate process is producing a will, if one can be found. Any person can begin the probate process by presenting the will to the probate court. Once the will has been found, or it is determined that the decedent did not have a will, then the interested parties must go to the probate court to open the estate administration or succession (a term for passing property) process.

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The appropriate probate court in which to bring a petition will depend on the type and location of assets owned by the decedent. For a majority of individuals, the appropriate probate court will be the court where the person was domiciled at death. In the event that a person holds real property outside of their domicile, then an additional probate court must also be consulted.

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The probate process can be somewhat complex, but we can help guide you through it and ensure that you comply with all of the legal requirements that come with probate.

WHY SHOULD I WANT TO AVOID PROBATE?

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Probate can be expensive and is time-consuming. Legal/Executor fees and other costs must be paid before your assets can be fully distributed to your heirs. If you own property in other states, your family could face multiple probates, each one according to the laws in that state.

Probate takes time, usually a year to two years. During part of this time, assets are frozen so that an accurate inventory can be taken. Nothing can be sold or distributed without court and/or Executor approval. If your family needs money to live on, they  must request a living allowance, which may be denied. Money can be tied up in the court system for some time.

Furthermore, there is no privacy in probate. Probate is a public process, so any "interested party" can see what you owned and who you owed. The probate process puts all the control in the court, and it can cost a substantial amount of money.

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