Wills and Trusts

A User's Guide to Probate

Probate is the court-supervised process of winding up your affairs after death. Many people believe the smart thing to do is to avoid the costs and hassles of probate. Contrary to this popular belief, the probate of most estates runs smoothly. The court's supervision ensures that any outstanding debts, taxes and claims against your estate are paid and that your remaining assets are divided among your heirs. Contact an experienced probate lawyer in your area today to learn more about the probate process. He or she can help you create an estate plan appropriate for your needs.

When you die with a will, or testate, the probate court will determine the validity of your will and oversee the closing of your estate. The person you named as executor will be in charge of collecting your assets, paying any debts owed by your estate, including taxes, and distributing your property to your named beneficiaries. When you die without a will, or intestate, the court will use state law to determine how to allocate your assets.

Probate Basics

The court-supervised steps of probate include:

Evaluating and determining the validity of your will, if you have one
Gathering all of your assets, making an inventory of those assets and appraising their value; the assets that are included in your estate for purposes of probate are called collectively your probate estate and may include solely-owned property, as well as your interest in jointly-owned property, the value of collections, antiques and other miscellaneous household items
Collecting any amounts due to you, such as outstanding paychecks or other sums
Notifying your creditors and paying your outstanding expenses, debts and taxes; these are generally paid in the following order: costs and expenses involved with the administration of your estate, funeral expenses, debts and taxes, all other claims
Distributing the remaining assets to the person(s) entitled to them, either under the terms of your will or the state's intestacy laws

Probate When You Have a Will

If you have a valid will, the probate process will likely proceed smoothly. Your will should name the person you want to act as executor of your estate. The first step your executor will take is to have your will declared genuine and valid. The court usually makes this declaration by "admitting the will to probate." Then the executor will oversee the administration of your estate.

Probate When You Do Not Have a Will

Your heirs will not avoid probate just because you do not have a will. Your heirs still will have to have your estate handled through the probate court. Instead of you controlling the distribution of your estate, it will be handled by the court according to state law without any regard for your wishes. In the event that you do not have any heirs, the state will take your property.

Conclusion

Probate is a court-supervised winding up of your affairs after death. Whether you die testate or intestate, your estate will probably go through probate. While probate does have certain costs associated with it, avoiding probate will not allow you to avoid death-related estate taxes. Moreover, dying without a will can actually increase the costs associated with probating your estate. An experienced wills and trusts attorney can help you anticipate the requirements of your state's probate laws and create a will that allows the efficient execution of your wishes.

DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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