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Simple and Easy Estate Information

Probate is the legal process that wraps up the financial affairs of a deceased person, and determines how the assets of the deceased person will be distributed in accordance with the provisions of the Last Will and Testament of the deceased person, or according to the provisions of state law.

Why is the probate process a good thing?

Because it provides a sensible means to protect all parties with an interest in the affairs of a deceased person. It protects the rights of creditors, and provides for payment of any tax liabilities of the deceased person. It also provides protection for the parties who are entitled to inherit the deceased person's assets. Everyone is entitled to notice of what is going on, and has an opportunity to get information so that they can determine if their interests are being treated fairly. Even the process of resolving an uncertainty over the Last Will and Testament of the deceased person can be very helpful. Third parties have no basis to ascertain whether a certain document is actually a valid "Will". They need to have a determination of someone with the authority to determine that the Will is valid. The person with that authority is the probate judge. Until the probate judge accepts the "Will", and any contest period has elapsed, there is no certainty about the validity of the Will.


If the estate is very simple, should probate be required?

If the estate is very simple, either because there are few assets, or because the family is all in accord, then the probate process may seem more complicated than necessary. However, the legal procedures required are a protection for those instances in which things don't go as well as they should. In some states there are probate avoidance strategies that can be used to avoid the necessity of probate if the assets of the deceased person are minimal.


Can probate be avoided?

Yes, but sometimes the "cure" is worse than the "disease". Many people worry about trying to avoid probate wtihout really understanding what probate is. The expense and complexity of probate procedures vary widely from state to state. And in many cases, the alternatives that are available have other risks or disadvantages that might be worse than going through probate.


Is probate expensive?

The main problem with probate is the expense for the attorney's fees. Probate procedures are too complex and fraught with financial risks to attempt to manage the process without an attorney's advice. But the expese for the attorney's fees will usually be a very small amount in comparison with the total value of the estate. And the benefit of the probate process in terms of the "step-up" in basis for Capital Gains Tax purposes may make the expenditure very worthwhile.


Who manages the probate process?

The probate court in the jurisdiction where the deceased person resided will appoint a Personal Representative ("PR") to manage the probate process. Sometimes the PR is referred to as an "Executor" or "Executrix", or as an "Administrator" or "Administratrix". If there is a Will, the person nominated as PR in the Will will usually be confirmed by the court as PR. If there is no Will, the state statute will usually prescribe who has the right to be appointed as PR. Until the court designates someone to act as PR, no one has authority to act for the deceased person.


How long does the probate process take?

The length of time that the probate proceeding will take is going to vary widely depending upon the complexity of the state probate procedure, the complexity of the assets that belonged to the deceased person, and any conflict between the parties interested in the estate. Usually the process will take at least 5 - 6 months, even if the estate is very small and well-organized. But if the estate is "taxable" for estate tax purposes, the process can take several years. 

AUTHOR Daniel Orville Kellogg