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Probate Basics

People don't like thinking about death, but unfortunately it's inevitable. The best thing you can do for your family is to make arrangements for how your property and money will be distributed once you're gone. There are generally two options for this: a will and a trust. If you choose to have a will – which is a good idea even if you have a trust – then it's important to have a basic understanding of the probate process as well. Every will goes through probate, which is the court-supervised process of sorting and administering a person's will. In the event that there isn't a will, the probate court will distribute property and assets according to the applicable laws of each state. FindLaw's section on Probate Basics provides helpful information on what is involved in the probate process.

This section provides a basic overview of the probate process as well as how to avoid probate. You can also find a listing of the probate laws and courts for each state. There is also an article explaining probate fees and a questionnaire to help prepare you for your meeting with a probate attorney.

What Happens During Probate?

The basic probate process involves several steps. First, the probate court collects all the property – including income, dividends, etc. – that is subject to the probate court's jurisdiction. Then, it pays any debts, claims, and taxes owed by the estate. Finally, it distributes the remaining property to the proper heirs. Also, if there are any disputes regarding a will, the probate court is in charge of settling them.

The probate process also involves various fees and costs. The costs and fees include any attorneys' fees, the fees of the executor or personal representative, and court costs. Although these costs are usually paid out of the estate's assets, it means that less is left to the heirs of the estate.

Ways to Avoid Probate

Probate can be a long and expensive process, so it's important to learn about the various ways to avoid it. One way to avoid it is to set up a trust, which isn't required to go through probate. Another option to avoid probate is to take advantage of payable upon death options available on certain types of accounts. Owning property jointly with the person you want to leave the property is yet another way to avoid probate. Upon the death of one co-owner, the joint property goes automatically to the surviving joint owner. Besides the general the general ownership of joint property with right of survivorship, there are other common forms of joint property ownerships that are available to married couples. A married couple can have a tenancy in the entirety and in states that have community property laws, any community property automatically goes to the surviving spouse. Finally, a person can avoid probate by gifting items and money before death. It's important to note that a person is only allowed gift a certain amount of money tax-free.

Hiring a Probate Attorney

If you've been named the executor or personal representative in a will, it can be helpful to consult with a probate attorney to help you through the probate process. In order to be of assistance, the attorney will need some basic information about the deceased, the deceased's estate plan, and the deceased's assets and liabilities. You can find a detailed questionnaire in this section to help better prepare you for your meeting with a probate attorney.

Learn About Probate Basics