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Probate

Common questions from a newly entrusted/appointed Personal Representative are “What is probate?” – “Why do we need it?” – “Do we have to probate?“.

Probate is a rather formal procedure, establishing the validity of the Will and is the official “proving” of the Will. Fortunately, not all Wills need to go through probate; such a determination will be dependent upon a testator’s unique situation. Probate asks for the court’s involvement. The process can have a large range of both cost and time required to complete, depending on the complexity of assets, debts and disputes.

Whether to spend your time and effort planning to avoid probate may or may not be an appropriate goal; depending on the size and complexity of your estate. Even if avoiding probate isn’t necessary, putting a plan in place for the care of children and distribution

of assets, is important to prevent disputes among family and to provide for loved ones. Regardless, the more information you share with your attorney and your personal representative, the more likely you are to have an estate plan that best fits your needs.

This guide is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended.

Probate FAQs

Probate is a legal process where your named Personal Representative goes before a court and does several things:

  • Identifies all property owned by the deceased.
  • Appraises the property and pays all debts and taxes.
  • Proves that the Will is valid and legal and distributes the property to the heirs as the Will instructs.

Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property.

Probate usually works like this: After your death, the person you named in your Will as Personal Representative or, if you die without a Will, the person appointed by a judge, files papers in the local probate court.

The executor proves the validity of your Will and presents the court with lists of your property, your debts and who is to inherit what you’ve left. Then relatives and creditors are officially notified of your death.

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