What is “Probate”?
Probate is a certain type of legal process whereby the belongings and property of a deceased person are distributed to their surviving family, friends, and beneficiaries. The probate process occurs through state-defined procedures when the person has died without a valid will. Also, in many states, the estate (the sum total of the person’s belongings) needs to be above a certain value.
Is the Probate Process Recommended?
Probate is the default mechanism for distributing a deceased person’s property if they haven’t created a valid will. The main problem with probate is that at times, it can create somewhat unfavorable property distributions for the beneficiaries.
For example, the deceased person may have wanted to bequeath a certain piece of furniture to a grandchild. However, without a will, the furniture will likely go to the deceased person’s spouse or children instead, since these categories receive distributions first under most probate laws.
A much better approach to property management is to create a written will that clearly states how property is to be distributed upon death. That way, the survivors won’t have to be subjected to probate decisions, which can also be time-consuming.
How Long Does Probate Take?
This will depend on the size of the estate involved. However, you should expect probate to take an average of about 7-9 months for most people. Again, this can be a long time compared to distributions made according to the instructions in a valid will.
You should also factor in additional time for the probate process in case other legal issues are involved, such as:
- Will disputes and distribution contests
- Disagreement amongst the beneficiaries
- Large estates that are complex (i.e., property located in different states or other countries; large amounts of valuable property, etc.)
What is the Order of Actions in a Probate Proceeding?
In a probate proceeding, the first thing to do is to appoint an executor who will administer over the person’s property. They will make several important decisions, such as helping to inventory the property, contacting beneficiaries, and reviewing documents.
Once the property is fully inventoried, the person’s debts and tax matters also need to be addressed. The process of paying off creditors for any outstanding payments may also begin here, and may often cut into the inheritance shares of some of the beneficiaries. The creditors usually have a limited time to respond to the court regarding the satisfaction of debts.
After the debts have been addressed, the property can then be distributed to the beneficiaries. Each stage in the process can take several weeks; as such the process can take several months and sometimes over a year.
Do I Need a Lawyer for Help With Probate?
Generally speaking, it’s advisable to work with a lawyer if you or a loved one must deal with probate requirements. A competent attorney can help guide you through the process to make sure that no errors are made, and that all legal requirements are being fulfilled. Probate is a very important process that can affect the way that property is distributed amongst the beneficiaries.
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Last Modified: 11-02-2012 12:00 PM PDT
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