Home > Trusts > The Probate Process
It is important to consider Probate while doing your estate planning. Probate is the legal process by which a court ensures that your property is distributed to your beneficiaries. Probate is carried out in the court of the city or county where you had your legal home. Only certain kinds of property - called probate property - must go through probate. In some states the probate process may be completed in a few days. It may take many months in others.
Probate essentially means to "prove" a will. During probate, a court ensures that the will bearing your signature is a genuine statement of how you want your estate to be distributed. The court also oversees the distribution of your probate estate to your beneficiaries or heirs.
Remember the difference: Beneficiaries are those persons or organizations you mention in your will. Your heirs are the people the law says your estate will go to.
What is Probate Property?
Only certain kinds of property must go through probate, and are called "probate property". They are:
Starting the Probate Process
- Property you owned in your name alone.
- Property you held jointly as "tenants in common".
- Life insurance policies payable to your estate and not to another person or institution.
- Your deceased spouse's share of community marital property. This type of property only goes through probate in community property states which are Arizona, California, Idaho, Louisiana, Nevada, New Mexico, Texas, Washington, and Wisconsin.
You may use your will to name an "executor" who will manage and settle your estate. The executor starts the probate process by presenting your original will to the court.
On the contrary, the court starts the probate process by appointing an administrator for you, if you don't have a valid will. The court then notifies everyone with an interest in the estate that your property is about to be disbursed. This notice goes to your surviving family members. It also is sent to your creditors.
Before the court transfer’s property to your beneficiaries or heirs, it must be satisfied that your estate has paid all of its bills and taxes. For that reason, the court could freeze your estate's probate assets at the beginning of probate. These assets may include savings accounts and safe deposit boxes. This freeze may last until the probate process is completed. In most cases, the court gives your survivors an allowance so they have money while probate is in progress. This allowance is taken from the assets of the estate.
What Property Does Not Go Through Probate?
Some kinds of property do not have to go through probate and can be disbursed directly to your beneficiaries and heirs. These include:
It costs money to go through probate. Your estate will have to pay attorney's fees, appraiser's fees, court costs for filing papers, and bonding fees for the executor. Your estate can save on the bonding fee if you authorize the executor to serve without bond. But the probate process is not necessarily as difficult as people are led to believe. Much of the energy spent to wrap up a person's affairs is necessary, even if probate court is avoided entirely. The process is often smooth, and when it is not, it is mostly because of difficulties - legal, financial or personal - that are due to the decedent's situation, not the court.
- Property that you hold jointly with right of survivorship
- Property in trust
- Assets that have a named beneficiary
- Life insurance
- Probate Costs
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