Probate court is a specialized type of court that deals with the property and debts of a person who has died. The basic role of the probate court judge is to assure that the deceased person’s creditors are paid and that any remaining assets are distributed to the proper beneficiaries.

When a person dies without a Will, the property is distributed to the deceased person’s next of kin, as determined by the state’s probate law. This part of the probate law is known as the law of intestate succession. It outlines the order in which the next of kin inherit. The details vary from state to state. In a sense, the law of intestate succession can be considered to be the “Will” the state makes for you if you don’t make your own.

When a person dies with a Will, the property is distributed to the people or organizations the Will designates to receive it. To probate a will, the court must also make a determination that the will is valid. If someone contests the validity of the will, the court will decide the matter. In all states, even if there is a will, a surviving spouse is entitled to a certain share of the property. This is called the surviving spouse’s elective share and the amount of the share varies by state.

The costs of probate include, among other things, court filing fees, costs for publishing notices in newspapers, and attorneyand executor fees. If the estate is complex, there may also be fees for an accountant. Fees for a probate attorney may be based on an hourly rate, a percentage of the value of the estate, or a combination of these.

A probate can take months, or even years, to complete. For an average modest estate, it can take from six months to two years. The longer it takes, the more it costs. If any heirs contest a will, things get more time-consuming and expensive.

Probate makes the deceased person’s financial situation a matter of public record. This includes the nature and extent of the assets, the person’s debts, and who will get the assets.

For fairly simple estates, with or without a Will, it may be possible to go through probate without a lawyer. However, many estates are more complex than they initially appear. The guidance of a qualified probate attorney can get you through the process quicker, help deal with problems that may arise, assure the taxes are handled properly, and ease your stress.

Due to much of what is explained above, many people seek ways to either avoid probate, or to minimize the amount of their property that will be subject to probate. This can be accomplished by restructuring the manner in which property is held and holding assets in a Revocable Living Trust.

Important Notes

The vast majority of our clients choose a Revocable Living Trust in lieu of a Will to ensure their heirs are not burdened by the time, publicity, and expense of probate court.

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