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What is Probate?

Perhaps one of the least liked words in the English language, unless of course you are a probate lawyer. So what is Probate? Why is it disliked?

Probate is the process of giving your “stuff” to your heirs when you die. You might think, “Hey, I have a will! My loved ones won’t have to go through the probate process!” Unfortunately that is a very common misconception. The reading of the will is in fact part of the probate process. The next misconception that is common is “I don’t own my house or have any property other than my car and some small things in the house so I don’t need a will and my stuff won’t have to go through probate.” Again, this is wrong because when a person dies without a will, the courts will direct how that person’s property is to be distributed. While the court tries to be as fair as possible, it has no way of knowing the particular dynamics of a family and may distribute things in a way that seems unfair to some family members.

So let’s just assume you have a will or you are fine with the court deciding for you after you are gone. How does Probate work? After you die someone will have to file papers with the court to open your estate (account for all your stuff). Since you only die once, your heirs will have to do this only once for your estate so the odds are they won’t really know how to go about doing this. Does anyone really like to file papers with a court? Well, actually yes, lawyers do. So your heirs will most likely seek out a lawyer to file the papers for them because courts can be intimidating and difficult to navigate unless you have done it before. Having an attorney complete the Probate process for you can be expensive.

But back to the process…If you have a will, the Executor or Fiduciary named in the will is responsible for: Making sure that all your property is account for and taken care of; Collecting any money due to you from anyone (stocks, insurance, etc.); Figuring out exactly who your heirs are (maybe there were some deaths or births since you prepared your will); Paying any legal debts owed by you at the time you passed (credit card bills, loans, taxes – such as Federal Estate Taxes, etc.); and distributing your assets (a.k.a. “stuff”) according to your will and or the direction of the Probate court.

Not exactly the type of situation anyone person would want to find themselves in while grieving for the loss of a loved one. This is why most people hire a Probate Attorney.

In the event you don’t have a will and pass away, the Probate court will appoint an Administrator and the process will begin from there just as if there had been an Executor or Fiduciary with a few differences.

The end result is that your assets will go through a sometimes lengthy process and be distributed either according to your will or the direction of the Probate court. Also of note is that the Probate court process results in a public record meaning that all of the assets distributed become known to the public.

Our intention at Donald Law Office is to avoid the Probate process if at all possible and in all most all circumstances we can structure your Estate Plan to avoid the Probate process. However, if you find that you do need to open a Probate estate, we are here to help.



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