What is Probate Court?
"Probate" has a bit of a bad reputation in the world of estate planning. Most of the talk concerning probate is about how to avoid it. While people often agree that avoiding probate can be a good idea in many cases, it's helpful to understand the probate process so that you can form the best plan for yourself.
What is Probate?
"Probate" is a legal process that deals with the assets and debts left behind after someone dies. By default, probate is supervised by a court, called the probate court. Note that the term "probate" can be used to describe the legal process, the court in which the process takes place, or the distribution of assets. The probate process can include all aspects of estate administration, such as:
- Proving the validity of a will, if it exists,
- Choosing an estate administrator, executor, or representative,
- Totaling all assets both in and out of the estate,
- Paying all applicable estate taxes and other debts,
- Identifying all heirs and other relatives,
- Distributing any remaining assets to the heirs as described in the will or intestacy statutes.
Probate typically begins when the deceased's representative files a petition along with the death certificate in the probate court. The process generally ends when the court formally closes the estate.
Probate: Pros and Cons
The cons of probate are what drive people to try to avoid it -- specifically, that probate is time consuming and expensive. Many states require 30 to 90 day waiting periods as part of probate. If a relative or potential heir decides to contest the will or the court's asset distribution, the process can take even longer. In addition, the court, attorneys, assessors, and other professionals involved all charge fees for processing an estate. These fees typically come out of the estate itself.
There are, however, some benefits to the probate process. First, for certain estates in some jurisdictions, probate may be required. It's best to check with a local probate attorney to determine whether probate is necessary in your jurisdiction. Second, the formality of probate court often gives some degree of certainty to the deceased's family. If there was ever a question about whether a will is valid or about the worth of a particular asset, the probate process will find an answer.
Know Your Local Laws
Probate, estate planning, and intestacy law is governed by the states. What may be legal in your state may not be legal in neighboring states. Be sure to check your state's laws or your local court system's policies before making any estate planning decisions. If your estate looks like it may be complicated, whether it's due to the estate's size, the type of assets your estate will have, or the number of potential heirs you have, it's best to consult with a local estate planning attorney.