Probate 101: What You Should Know
Probate 101: What You Should Know About Probate (or Avoiding Probate)
By Jessica Sillers — Sep 3, 2019
When you’re grieving, a complicated legal and financial process is the last thing you want to deal with. But often, that’s exactly what happens when families go through the probate process after losing a loved one.
Understanding the probate process can help keep you from getting caught by surprise.
Who takes charge of a will after someone dies? What happens if someone dies without a will? Is there any way to avoid a lengthy probate process and pile of legal paperwork?
We’ll break it down for you.
What Is Probate?
Probate is the legal process of administering a person’s estate after their death. If you have a last will and testament, probate will involve proving that your will is legally valid, executing your instructions and paying applicable taxes.
Having a clearly written will is one way to make the probate process easier on your loved ones. After all, your will doesn’t only specify who should inherit what. It also designates who you’d like to take care of your kids if both parents were to pass away, plus the executor who should fulfill the instructions in your will.
If you die without a will, the probate court will rely on your state’s intestate law to figure out how to distribute the person’s stuff. (You know how Prince’s heirs had trouble inheriting his assets because he didn’t have a will? Yeah, like that.)
Terms to Know
Legal proceedings often involve terminology that can be overwhelming when you’re already dealing with a lot. A few useful probate terms to know:
Decedent: The deceased person whose estate is going through probate.
Executor or personal representative: The person in charge of carrying out the instructions in the will.
Administrator: A court-appointed executor, if someone dies without leaving a will.
Intestate: A case where someone dies without a will.
Intestacy: State laws determining how to distribute such estates.
Letters testamentary: A document from a probate court authorizing the executor to start carrying out the will.
Notice of probate and notice to creditors: Notices that the executor has to submit, in writing, to the heirs (“interested parties”) and creditors.
Small estate affidavit, summary probate and/or summary administration: Documents or processes that can allow you to skip or shorten certain aspects of probate (i.e. distribute property without a lengthy court process). Estates below a certain value (depending on your state) are eligible for this.
Step-by-Step Guide to Navigating Probate Court
Your probate experience will be determined by your own state laws, but here’s how the process generally goes.
Step 1: Open Probate
An executor can’t jump right in and start passing along family heirlooms and inheritances. The first step is filing a petition with the probate court to open the process and “prove” the will. Until that happens, they’re not allowed to distribute or discard any property. (Though they often can take steps to protect the property, like clearing leaves and debris out of the roof gutters to prevent water damage—but check with an attorney to make sure.) The probate court’s role here is to verify that the will is legally valid.
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