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What is Probate and how can it affect me?


Probate is complex, but can be simplified

Probate, sometimes called estate administration, is a court process that takes place after a person dies while owning assets (like houses, bank accounts, stock, etc.). A probate is required if a person made a Will, didn’t make a Will, or if the person started and didn’t finish a Trust or other plan to avoid probate. A Probate Court Judge supervises, manages and sometimes “referees” the court proceedings to make sure assets are protected and transferred correctly, and anyone interested is heard. And yes, you read correctly a Will goes through probate and is subject to the same judicial oversight as if no plan at all was created!

An executor or administrator is appointed by the Court. The executor is responsible to collect and manage assets in the estate and is required to follow the many state laws governing their actions. The executor also must report their actions to the Court, and obtain approval from the Judge. Depending on the value of estate assets, an executor may need to apply for a bond to insure the estate.


Probate is public, one-size-fits all, and can get expensive 

Probate court was designed to be a public forum. All aspects of the ongoing estate administration can be viewed and scrutinized by anyone in the community. Additionally, if a plan is incomplete then – regardless of what the decedent may have said during their life – State law will decide how that property is distributed.

What’s worse, an old Will that’s grown stale still controls who gets what even if you wanted something else. That ex-spouse, estranged child or former best friend may receive a share from an old plan even if they’ve been out of the picture for many years. In addition, the probate process allows for anyone who feels left out to waste time and money by contesting the Will or every action taken by the executor. When a Will is contested attorney’s fees will eat into the estate as an executor or administrator uses up estate funds to defend their actions.


Probate can be avoided

Not every probate results in expensive court fights, many go smoothly from start to finish. And, while not perfect, probate at least provides a set of rules and instructions so that estate assets are eventually distributed. However, simply because probate introduces uncertainty, many people find it’s better to avoid it; just ask anyone who has recently had the “privilege” of being an executor.

If you want to avoid probate you have to Plan Ahead. A number of legal strategies can keep your assets and heirs out of probate court, but not every strategy works for every situation. It is critical to not only put a plan together before you need it, but that you also maintain and adjust your plan so that it works not just for after-death distributions, but also for how you want to live!

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