Frequently Asked Probate Questions
The Probate Registry
When someone dies, probate is the court procedure that transfers the assets of the decedent to their heirs and finalizes the affairs of the deceased. There are two different types of probate. The most common kind of probate is testate, which means the deceased had a will. In the second type of probate, there is no will. This is called intestate.
When there is a will, an executor is named and he or she will handle the administrative duties for the estate. They must compile an inventory of the decedent’s property and other assets, and file it with the court. The decedent’s creditors are notified of the death and given a certain amount of time to file their claims against the estate. It is the executor’s responsibility to use estate funds to pay off any debts or taxes owed by the deceased person. They must then see that the remaining assets are distributed amongst the heirs. Once that is done, the estate is closed. The entire probate procedure is usually completed within a year, unless the estate is quite complex.
If there is no will, the probate procedure can become much more complicated. There are several requirements that the court can demand to have met. Often a bond must be posted before the court will appoint an administrator to handle the estate. The court may also require that any property in the estate be appraised to determine its value. The law has been carefully constructed to protect the heirs from theft or cheating. Without a will, probate will probably take longer than usual.
The Probate Inventory
Will a Living Trust Avoid Probate?
Not necessarily. In fact, sometimes a living trust can exacerbate the situation. Most probate cases only take a year or less to resolve. A living trust, however, must be maintained until you die. If every piece of property or asset that you own is not included in the living trust, your estate will still end up in probate. You will have defeated your purpose and spent a large sum administering the trust while you were still alive. Some proponents of living trusts say that they will save your heirs money. That is not always the case, however. Unless you have a very large estate, the cost of administering the trust could actually exceed the probate costs that would have been incurred.
How can you make Probate as simple as Possible
Although we would all like to think we are going to live forever, we know that is not going to happen. Most of us would like the probate process to be as simple and uncomplicated as possible for our heirs. The best way to assure that that happens is to talk to an attorney you trust about your goals and objectives. She will be able to advice you on the available options and help you make these important decisions. No matter what size your estate or how old you are, it is never too soon to begin estate planning.
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