What is the Probate Process and How Can You Avoid It?

When a person passes away, their estate must go through a process known as probate. This process involves proving that the will is valid, locating and determining the value of the person's assets, paying their final bills and taxes, and distributing the rest of the estate to its rightful beneficiaries. The Surrogacy Court oversees this process, and a judge or court handling the estate is referred to as a probate court. In probate proceedings, the executor named in the will files a petition with the Surrogacy Court along with the original of his will.

The petition will include the date of death, the beneficiaries named in the will, the heirs if the will is invalid, and an estimate of the value of the estate. When a person dies, who inherits depends on whether there is a will and who the living relatives are and their relationship to the person who died. When the person who died (the deceased) had a will, then the will must be filed with the Surrogacy Court and admitted (approved) for legalization. The Surrogate must be satisfied that the will is legally acceptable before appointing an executor to deliver the inheritance (everything of value) that belonged to the person who died and fulfill their wishes.

With small estates, the court may appoint an executor named in the deceased's will, or an heir to the deceased if he did not leave a will, as a voluntary administrator. The court will then issue a certificate for each asset that the administrator collects and distributes. Beneficiaries who will inherit something under the will must be notified (officially informed) of the probate procedure. A family member or friend will have to ask the court for the right to act as executor, unless legalization is not necessary. The probate hearing allows the court to formally appoint someone to oversee distribution of assets and other aspects of liquidating your estate. Another common way to avoid probate is to use beneficiary designations to transfer ownership after your death.

This means that you can designate someone to receive certain assets upon your death without having to go through probate court. Claims rejected by the executor can be taken to court, where a probate judge will have the final say on whether or not they are justified. You'll want to avoid probate court if you can, but many of the steps in the probate process are steps you'll need to take regardless of whether or not you go through probate court. If you plan to sell those assets during estate settlement or pass them on to a beneficiary, you'll need to go through estate proceedings. After death of an asset holder, court appoints an executor named in will or an administrator (if there is no will) to administer probate process. One way to reduce burden and headache of probate, or even avoid it altogether, is to create a trust.

With good estate planning, you can avoid requiring loved ones to go through probate process to distribute their assets after their death. If deceased person's estate is insolvent (debts exceed assets), trustee may decide not to initiate estate. In addition, much of delay and bureaucracy commonly associated with probate is result of tax laws and tax reporting requirements, which cannot be eliminated through living trust and estate evasion.

Kathleen Huelsman
Kathleen Huelsman

Infuriatingly humble social media maven. Amateur internet expert. Award-winning music junkie. Extreme problem solver. Extreme twitter buff.

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