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Probate is a court-supervised process of distributing and overseeing property after a person dies. The purpose of probate is to determine the wishes of the deceased, pay debts, and to distribute the property according to the decedent’s wishes. The following occurs during probate:
Many individuals take into consideration avoiding probate in deciding on an estate planning option.
Yes, in some states the law provides a way of avoiding probate by allowing an exemption or a simplified probate process for small estates only worth a certain amount. In California, for example, small estates worth less than $100,000 escape the probate process. In a few states, probate is eliminated or a simplified probate process applies for property left to the surviving spouse.
An executor named in a will or an administrator appointed by a probate court is responsible for overseeing the probate process. A probate judge appoints an administrator if an executor is unnamed in a will or if the decedent died without a will. Usually, the administrator is a relative or the person inheriting the majority of the decedent’s estate.
The executor or the administrator performs the following duties:
In many situations, the executor oversees probate, while a probate lawyer performs the bulk of the work.
If probate proceedings are unnecessary, the family of the decedent chooses an informal estate representative to pay debts and to distribute the property. Usually the estate representative is a family member or a close friend of the decedent.
Because probate involves court costs and attorney fees, avoiding probate will save time and money. The probate process usually takes between six months to a year. The executor of the will or a court-appointed administrator will handle probate, and, if necessary, hire a probate attorney. The executor or the administrator is responsible for filing the appropriate paperwork with the probate court after the decedent’s death.
During probate, the following occurs: the probate court receives a copy of the decedent's will, probate assets are identified and inventoried, contact is made with heirs, beneficiaries, and creditors, and debts and taxes are paid. The last step in the probate process is the distribution of probate assets. In some situations, the executor may have to sell assets, such as real estate and securities, to pay outstanding debts or to make cash bequests specified by the will.
If property qualifies for a state's exemption or a simplified probate process, probate is inapplicable and it is unnecessary to devise methods to avoid probate. If, on the other hand, an estate will be subject to probate, there are some effective methods of avoiding probate.