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The Probate Process Explained

John Worley - Monday, June 07, 2010

Probate is one of the most common and least understood legal proceedings. It basically comprises the settlement of all financial matters pertaining to the estate of an individual after their death. This includes paying any outstanding debts or tax liability, collecting any amounts due to the estate and, where necessary, determining the validity of the decedent’s last will and testament. If no will is found, the probate process typically includes a fair and equitable division of assets among the heirs of the deceased person; in community property states, the entirety of the estate passes to the spouse and no probate proceedings are required. Typically an administrator is appointed to handle the legal and financial concerns of the deceased; this individual is known as the executor, and deals with all administrative concerns relating to the disposition of the estate. When there is no will, the probate process is much more difficult and expensive.

Normal Probate

The probate process is generally lengthy (see below for exceptions) - lasting up to a year or more, and typically begins with the appointment of an executor or administrator. Executors are usually specified in the will of the deceased. The executor’s first act is usually to file a Petition for Probate of Will and Appointment of Executor; a hearing is then scheduled to review the will and to approve the selection of executor. Once the will has been certified as genuine, the executor is usually approved to begin the probate process. If no will exists, then an administrator is appointed by the probate court to handle the financial affairs; usually this is a family member or close friend. Both executors and administrators are paid an hourly fee for their services.

The initial stages of the probate process involve itemization, inventory, and appraisal of all assets belonging to the estate. This includes real estate, bank accounts, investments, life insurance policies, and all other items of value that constitute a financial asset. Some assets, including antiques, motor vehicles, and real estate holdings, require a professional appraisal of their value before they are added to the total worth of the estate.

Debts and liabilities are also assessed; typically, these financial responsibilities are dealt with in a predetermined order. A small allowance is sometimes paid to the immediate survivors, including the spouse and children of the deceased. After that, administrative costs are paid first, including the fees due to the executor or administrator. Funeral expenses and burial costs are dealt with next, followed by all other debts and claims. Pending lawsuits against the estate are typically paid after they are decided in court, although a settlement may be offered at any time during the probate process.

Once all outstanding and pending debts have been paid and a legally-required waiting period has elapsed, a final settlement is approved by the probate court and the remainder of the estate is distributed by the executor in accordance with the will or, if there is no will, the administrator makes distribution in accordance with the applicable state law. At this point, the assets of the estate may be directly provided to the heirs in their original form as real estate, financial securities, or other assets, or those same assets may be sold and the proceeds distributed as required by the provisions of the will or state law. This final disposition concludes the probate process and dissolves the estate as a legal entity, allowing the survivors of the deceased closure on the inheritance process.

Expedited Probate

There are expedited processes for going through Probate in Texas which are available to Estates that have a will and do not have any debts or other reasons that necessitate administration. Many small estates can qualify for this type of probate and even large estates which don’t have debt or other complications. These expedited probates can be completed in a much shorter period of time – sometimes in as little as a month with only one court appearance.

No Probate

To avoid Probate altogether, you can establish a Trust during your life and move your assets into the Trust before your death. This is especially helpful if you own real property in more that one state – thus requiring probates in two different states when you die. If you establish a trust during your lifetime and put the properties in the trust, you will not have to go through probate in multiple estates. This can save significant money to your estate as the cost of setting of a trust is usually less than the cost of even one probate proceeding.

Free Consultation

If you have questions about Probate or Trusts – or would like to know if your estate or one you are handling qualifies for expedited probate proceedings, call me to set up an appointment for a free consultation to discuss your situation.

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