What is Probate?
Probate is a court mandated legal process that attempts to distribute the estate of someone who dies. The goal of the probate process is to:
- Verify the validity of the deceased's will
- Identify and inventory the deceased person's property
- Have property appraised
- Pay the deceased's remaining debts and taxes
- Distribute the deceased's property
Initiation of Probate Proceedings
The executor of the deceased's will usually initiates probate proceedings. If there is no will, or no executor is named, the probate court will select an administrator to act as the executor of the will. The administrator is usually the deceased's closest relative or the person that stands to inherit the most.
Duties of the Executor
The executor of an estate has several court appointed duties that he or she must comply with. The executor must:
- File papers in local probate court
- Prove the validity of the will
- Provide a list of the deceased's property, debts, and the names of those who stand to inherit
- Give proper notice of death by filing a death certificate
Does All Property Have to Pass Through Probate?
No. Most states allow a certain amount of property to pass free of probate, or through an expedited probate procedure. In California, for example, you can pass up to $100,000 of property without probate. In addition, property that passes outside of your will through joint tenancy arrangements or living trusts is not subject to probate.
Depending on your life circumstances, planning to avoid probate may be a wise decision. The two most often cited reasons for avoiding probate are:
- Probate usually ties up property for months, sometimes even a year
- Probate is costly - attorney and court fees resulting from probate can take up to 5% of an estate's value
Do I Need Just any Attorney or a Probate Lawyer?
If you are involved in a probate proceeding, you should consult with an experienced probate attorney. The right probate lawyer can inform you of your rights as well as preserve any possible legal remedies you may have. If you wish to avoid probate in administering your estate, the proper estate planning lawyer can also craft a will or trust that is suitable to your situation.