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Probate Basics

Very simply, probate is the procedure by which a handwritten or typewritten will is proved in court to be valid and enforceable.  Frequently this includes appointing someone to handle the affairs of the estate with the end goal being distribution of the estate.  Probate must take place within four years of death and an attorney will establish to the court that the will meets certain execution requirements to be admitted to probate.

Certain assets do not pass through probate proceedings.  Examples are (1) items titled to automatically pass to a particular person upon death, such as a joint tenancy with right of survivorship; or (2) assets with beneficiary designations, such as life insurance policies or IRAs.  However, it should be noted that even these types of assets can sometimes become probate assets if the beneficiaries die before the owner or if beneficiary forms are not completed properly.

There is no requirement that a will be probated if the property in the estate can be transferred without a probate proceeding.  However, this should not be confused with the requirement for the filing of a tax return and payment of taxes.  The federal estate tax laws provide that a certain amount of property in an estate will be exempt from any estate taxes.  This amount varies from year to year, so it is important to contact an attorney or accountant to verify whether any filings or payments are due for the estate.

The obvious question then is, “What do I need to do first?”

  1. Locate the original will.
  2. Consult with a probate attorney.  Even if you don’t think probate will be necessary, it is a good idea to consult with an attorney who can professionally evaluate your situation and answer your questions.
  3. File Application for Probate.  If probate will be necessary, start the proceeding.  There are a number of stages to the process, but the probate process is frequently relatively short and inexpensive.
  4. Unfortunately, not all probate proceedings are easy.  For instance, you may find yourself in the middle of a will contest, or the will may have defects or other issues complicating probate.

The important thing is to have a probate attorney who can put your mind at ease and assist you through whatever processes are required to ensure final distribution of the estate’s assets.

 

 

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