What is probate?
From the Latin, meaning 'to prove worthy', probate is the legal process wherein a will is proven valid. It also refers to aspects of estate settlement, including the collection of the decedent's assets, payment of debts and distribution of assets to intended recipients.
Probate law varies from state to state. There are a number of legal firms who specialize in probate, and it's a good idea to consult an expert while you're estate planning. If you're in the process of planning a funeral for someone and you know that the will hasn't provided properly for the distribution of all assets, you should prepare for probate by searching for a good probate attorney.
In many cases, probate is necessary when dealing with a death, as estate taxes and other legal matters need to be settled before disbursement of the estate can begin. Consumers can go a long way toward easing the probate process by properly filing a will or through detailed estate planning.
A person's property doesn't have to go through probate if it meets the following criteria:
- Some simple property transfers are exempt from probate or can go through simplified probate.
- Any life insurance policies or 401Ks with a named beneficiary, bypass probate.
- Living trusts, accounts held in trust and POD accounts are exempt from probate.
- Some simple wills will pass through probate very easily.
The Probate Process
The length of time required for probate varies from one estate to the next. It depends on the complexity of estate assets, the provisions of the will, the difficulty in locating forms and beneficiaries and any other extenuating circumstances.
In the case of a contested will or any other legal wrangling, some probate cases take years (even decades) to settle.
Probate costs may be regulated by state law or by practice in the community. Extenuating costs can add up considerably. These might include costs for appraisal, fees for an executor, court costs, legal and accounting fees and other legal or bond fees (for example, a 'surety bond'). If there's any protracted legal battle, costs may be very high.
You might want to compensate for potential probate costs while estate planning.