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Understanding the Probate Process

understanding the probate process

Unless you are a legal professional specializing in wills and trusts, the term probate and the legal probate process probably are a mystery to you and somewhat intimidating. You may consider it something you will only need to learn about and deal with when it becomes absolutely necessary. However, advance knowledge can help you prepare and deal with it more effectively when you have to.

What Is Probate?

To put it simply, probate is the legal process in which a deceased's will is proven to be a valid legal document by a court of law. In the event the decedent did not leave a will, the estate is settled according to the laws of the state in which the deceased resided. Probate is the first step in the administration and distribution of the deceased's assets. This distribution may take a couple of months or much longer. There are many factors relating to the process of probate that can affect the length of time probate of an estate can take.

What Is the Process of Probate?

You might wonder just how long will probate take? It is also important to understand what the probate process entails. The length of time varies with each estate, but it can take anywhere from a couple of months to a year or more. The simplest of estates with a home and a couple of bank accounts are the easiest and quickest to probate. In other cases probate can get cumbersome. Factors in the process that can prolong the final distribution of assets include:

  • Publishing of legal notices and notifying any and all creditors of the deceased
  • Filing and objecting to any claims that there may be against the estate
  • Dealing with any lawsuits pending concerning the decedent or lawsuits on the decedent's death
  • Selling of real estate or other assets of the deceased in order to pay debts for the estate
  • Settling of unpaid estate taxes
  • Handling homestead property

Some states within the United States have specific laws regarding homesteads and whether they must be dealt with separately from the other assets.

The list above is not inclusive of all the variables of probating an estate. Other factors that may affect the probate process can include the size of the estate, the number of beneficiaries that are involved and whether the beneficiaries agree and do not contest the will, which can have an adverse effect on the process. Even the proximity of where the beneficiaries live in relation to the attorney can affect the timeline of the probate process.

How Can Probate Be Avoided?

If all this probate talk has you worrying about leaving a mess to your loved ones, you can save them the hassle of going through probate. You may be able to make it easier on them by placing your assets into a living trust. Although this can be somewhat costly, a living trust lets you start planning now. The benefit of a living trust is that it allows you to transfer the title of your assets into the name of the trust you created. This way, upon your death, these assets go to your beneficiaries without having to go through the probate process. This is the easiest way to avoid probate.

The assets that you can place into your living trust at the time of creation and during your lifetime are as follows:

  • Homes, vacation homes, and rental properties
  • Bank accounts
  • Stocks, bonds, mutual funds, and exchange-traded funds
  • Automobiles
  • Businesses

After your death, insurance policies and retirement accounts can be transferred into your living trust. To do this, you must make the name of your trust your beneficiary on such policies and accounts.

Probate can be a detailed, lengthy process. How long it takes can be shortened by planning ahead so you don't leave a mess for your loved ones.

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