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What is Probate, and why do I need it?

Probate may be one of those legal terms you think you should know, but its actual definition escapes you. People talk about a will or an estate going "through probate," which sounds easy enough until you're faced with the daunting process yourself. If you have lost a family member, reading and interpreting their will is not easy, never mind following its legal implications; and, if there is no Will, then life can be even more complicated. So what is probate? Can it be avoided? Is it a good thing or a bad thing?

What probate does

When a person dies, probate is the legal process that must take place to settle his or her estate. Probate holds the estate in a safe position while all matters are investigated. There's financial housekeeping to do: notice should be given to anyone who might have claims against the deceased person, debts must be paid, tax liability determined and belongings need to be properly disbursed to recipients. This is true even if the deceased had a trust.

Why probate exists

In short, probate exists to give notice of the death to the world, amass the deceased property, determine claims against the deceased and then ensure that property changes hands true to the deceased's explicitly stated wishes if there is a Will or trust. If there is no Will, then a statute determines how the deceased's property is distributed. Occasionally, after a death in the family, there will be a dispute over what the deceased person wanted to leave to whom. There may be a suggestion that the Will or trust is invalid, or it may be challenged outright. One family member may try to take something that isn't bequeathed to them, or another may try to insist that the deceased wanted something else than is stated in his or her will. Things could get chaotic quickly without probate, as you can imagine. And, a Will must be probated within three years of the death in order to be valid.

Who handles probate?

Anyone can be a "personal representative"; the person charged with establishing and settling the deceased's estate. The task may be fairly exhaustive and time-consuming, as you'll see in this to-do list. You must:

  • Get in touch with all creditors and heirs (not limited to family)
  • Find, collect and tabulate all of the deceased's assets
  • Calculate federal, state estate taxes, and any income taxes for the deceased, and make necessary payments to appropriate agencies
  • Review claims against the estate to see if they are valid
  • Sell property if needed to take care of outstanding bills
  • Distribute what's left to named beneficiaries or heirs (relatives, friends, etc.)

Even if the estate is not overly large and complicated, the process still is. An experienced attorney can handle probate knowledgably and efficiently-and reduce stress for you, the survivor. It's a good time to let someone else handle the heavy lifting. And, if there are claims about the validity of the Will, or other such issues, then an experienced attorney can help you breath much more easily.

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