What is Probate?

January 17, 2017

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Whether a loved one dies with a Will leaving money or property to beneficiaries, or if they die without a Will (“intestate”), an Estate must be opened to transfer their money and property to their beneficiaries or heirs. Dealing with the process for administering, or “probating”, the Estate can be overwhelming and intimidating, and the process can be lengthy. Having a basic understanding of the process that a Will goes through after someone dies can make this time less overwhelming and stressful.

What Exactly is Probate?

Simply put, probate is the process of determining the validity of a Will and administering the Estate. The process, however, is more complicated than the simple definition. First the Orphans Court or Register of Wills must determine if the Will is valid. This is done with all Wills, regardless of any other circumstance, and it is during this step that the Will becomes a public document. The next step in the process is to formally notify all beneficiaries that the Will has been submitted for probate. Then the property of the deceased is inventoried, to make sure everything is accounted for. Once everything has been inventoried and accounted for, properties will need to be given a value, which may require an appraisal. Once the appraisal is completed, any debts and taxes must be paid before the remaining property is disbursed to the beneficiaries.

How Long Does Probate Take?

The probate process can be lengthy because various forms need to be filed, consents obtained and assets located and appraised, and this process alone can take some time. Probate can be an even more lengthy process if the beneficiaries have disagreements over the Will or the distribution of assets. The number of beneficiaries and their physical location can also impact the speed of the probate process, as can the need to file tax returns, locate missing heirs, etc. There are deadlines that must be met in the probate process, so it is not an indefinite amount of time, but generally it takes six to ten months for beneficiaries to receive their portion of an estate.

Is it Possible to Avoid Probate?

There are a number ways in which probate can be avoided. First and foremost, setting up a trust, rather than a will, can spare your family the probate process upon your death. For a trust—whether a revocable or “living” trust or an irrevocable trust—the trust itself owns your estate, and therefore they can divvy it up however you’d like, instead of it needing to go through the lengthy probate process. Another method is setting up “payable on death” or “beneficiary” accounts, which will be accessible to your beneficiaries only once you have passed. Additionally, properties can avoid probate by joint ownership, life estate deeds or other methods.

It is beneficial to understand the probate process and how it works in advance, when you are setting up your Estate plan. Probate avoidance, as well as lowering potential estate and inheritance taxes, can usually only be arranged by planning prior to death, so it is important to speak with a lawyer about your options sooner than later. If you are ready to write your will or set up a trust, give us a call at DK Rus today to discuss your options. Or if you are the loved one of someone recently deceased and are confused by the probate process, feel free to contact us to help you navigate this process.

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