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How "Probate" Works

Posted on in Estate Planning
how-probate-works

Many people who hear the word "probate" conjure up images of the long and complicated process that takes place when someone dies. Although traditional probate procedures have tended to be lengthy and complex, many states now have simplified procedures for most estates, so that with a lawyer's help most people shouldn't have too much difficulty serving as the personal representative of an estate (called the "executor" if a person dies with a will or "administrator" if the person dies without a will).

The probate process is conceptually simple: someone supervised by a court accounts for the decedent's property, pays debts and taxes, and distributes what remains according to the person's will or state law. Here's a closer look at what would be involved if you were named an executor or volunteered as administrator.

1. Opening the estate. You begin the probate process by submitting the will (if any) to the probate court in the decedent's county and notifying relatives, heirs and creditors of the death. The court will issue you documents authorizing you to act on the estate's behalf.

2. Investigating the estate. You next must locate all the property, determine its value, collect money owed the estate, and pay debts. Professional appraisals may be needed for some items.

3. Paying taxes. You are responsible for estate and inheritance taxes and for the decedent's final federal and state income tax returns. Only a small percentage of estates owe federal estate tax, but most states have an inheritance tax. Sometimes the estate pays it, sometimes the heirs.

4. Distributing the estate. You can't usually distribute property to heirs until you have receipts showing all taxes have been paid and you have filed an accounting with the court. There is a waiting period during which people can object to what you've done, but sometimes this comes after you've distributed the property. In any case, once you've filed the accounting and distributed the property, and the waiting period has expired, the estate is "settled" and your responsibility ends.

Non-Probate Property

Not all property goes through probate. Non-probate property is transferred automatically to another person. One example of such property is property held in "joint tenancy." It automatically goes to the surviving joint tenants. Another example is life insurance. The proceeds go to beneficiaries outside of probate.

Although probate in theory is simple - a person's will is verified, property gathered, debts and taxes paid, and remaining property distributed to heirs - the process can be complex and time-consuming, as it involves paperwork and court appearances. Legal assistance can be obtained to help the executor or administrator perform some or all of the duties of probating an estate, and to help you decide who will be your executor.

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