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What is probate law?

Probate is the courts' administration and distribution of a deceased person's estate. It can be a lengthy and complex process, and it may take years to complete. However, probate law is necessary to ensure that your property is correctly distributed and all outstanding debts and taxes are paid.

The probate process differs from state to state, but there are some uniform characteristics you should know about. Also, you should be aware that there are significant fees involved to probate a will. Typically, these include court costs as well as fees charged by probate lawyers. Court costs are often fixed, and legal fees are usually expressed as percentages of the entire value of the estate.

You should keep in mind that percentage-based fees are levied against the original value of the entire estate, not the value that remains after taxes and debts have been paid.

How the Probate Process Works

People who leave wills can usually avoid some or all of the probate process, as most jurisdictions allow for some assets to be exempt from probate. However, there are certain situations in which probate cannot be avoided. They can include:

  • When a person does not leave a will
  • When the deceased had significant debts or outstanding taxes
  • When there is an unusually diverse or valuable pool of assets

The process begins with the executor of the will, who is required by law to file probate forms in the court system to validate the legitimacy of the will. The probate executor will then collect, administer and catalogue the assets and present his or her findings to the court. This alone can take a year or longer. Then, the probate court issues an order authorizing the executor to resolve outstanding debts and taxes, at which time the remaining property is distributed as described in the will (where one exists).

Avoiding Probate Court

In some cases, probate cannot be avoided. However, you can avoid leaving others with some of the lengthier and more trying aspects of the process by ensuring:

  • You do not have any significant debts or outstanding taxes owing
  • All your assets are held or registered in the state where you currently reside
  • You have a legally binding last will and testament
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