Published On: Wed, Sep 1st, 2021

What You Need to Know about Probate

After a loved one has passed away, the last thing you want to do is go to a courtroom. However, the legality of a will can be a messy world of paperwork and court proceedings. 

“Probate can be a messy business,” says Joshua Nelson, an Attorney from Nelson Elder Care Law. “Is the will legal? If it is, how do you split it? If it isn’t, who handles the case? It can be overwhelming, especially for those still going through the grieving process.”

To better understand what probate is and how to handle it, here are some of the most common questions asked by those going through the process.

photo/ jessica45

What is Probate?

Probate is simply the legal process that occurs after death. This almost always includes proving the will is valid as it is a routine procedure. It may also include identifying, inventorying, and appraising a deceased person’s property. 

Some money may be taken from the deceased one’s estate to cover any debts or taxes before distributing the remaining property. If the will is valid, then the estate will be divided by their wishes. However, if the will is invalid or non-existent, state law determines how the deceased person’s property will be distributed.

Why Should I Go Through Probate?

Probate is most used when there is no will present or when the will is invalid. In these cases, the state must determine who the beneficiaries are and how the remaining assets will be distributed.

However, probate can still be necessary when a will is present. Firstly, a will can have a host of legal issues. For example, the last submitted version of the will may be different from the previously written will, in which case the discrepancies must be handled. The will can also be fraudulently executed, such as having the will drafted while the deceased was not of sound mind. There can be other challenges to the integrity of the will. These are just some of the most common.

Even if there are no issues with the will itself, you may still need to go through probate to handle the distribution of assets. Items may be in the deceased one’s name only, in which case a probate lawyer can step in and move the goods to the correct beneficiary and put the property under their name. In cases where no beneficiaries are named, the state may determine how the estate is distributed among those who survive the deceased.

Who is Responsible for Handling Probate?

The executor of the will is usually the person handling probate. If there is no executor, then the Probate Court will name an administrator to handle the process. This is only done if a formal probate proceeding is necessary. The court will appoint a close relative or family friend as an informal estate representative if it is not essential.

Should I Avoid Probate?

Probate rarely benefits the beneficiaries of the will, as it costs both money and time. There are three cases in which you should use probate:

  1. Estate Complications: There may be some complications with the inheritance, especially in cases involving debts that are not easily paid. It is best to get a probate lawyer who can properly handle debts in these cases.

Health and Age: If you are young and healthy, you should probably get a probate lawyer. A complex probate-avoidance plan now means that you must re-do it every time your living situation changes. If you get a new job, move to a new place, or make any other sizable life-changing decision, then the probate-avoidance plan must be updated as well.

Author: Sadaf Zain

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