What is Probate?
Previously, I had discussed the necessity of an estate plan as a means of avoiding probate. But, what is probate and why avoid it?
Probate is the administration of a decedent’s estate through the assistance of a court. Now in English. When somebody dies and leaves behind property in their name, the heirs, the people that will receive the property, of the dead person, the decedent, have to go to court in order to receive the property. A court, known as a probate court, has to help the heirs, usually the family, divide up the property. You die owning property and a court has to help divide up your property.
Unfortunately, there is no choice in this matter. Excluding a few circumstances a court will always be involved in the process of dividing up the property, known as the estate. Hence why you actively need to avoid probate; it is basically an opt out system (only you need to opt out of it before probate even applies, before you die, unless you figured out how to communicate from the afterlife).
How Does Probate Work?
There are several stages to probate, including determining who receives property and paying off creditors of the decedent. One of the first steps to any probate is determining the extent of the decedent’s estate; before you can determine how to divide up the estate, you of course need to know what makes up the estate.
In order to properly commence probate a petition must be submitted to the court. The petition outlines several of the necessary details for the probate to proceed.
How Long Does It Take?
The best case? The simplest probate will take anywhere from eight to twelve months. This is a probate that involves little issues with heirs, creditors, and discovering the extent of the estate.
The worst case? I recently heard of a probate that started nineteen years ago! And is still going! This is a rare case and should not be taken as the norm, but it is a possibility.
In a future post I will elaborate on the common methods to avoid probate. However, I want to correct a commonly held belief: having a will does not, by itself, allow you to avoid probate.
In fact, originally, probate was the term used for presenting your will before the court. Having a will only aids probate, but you still have to go through the probate process.
Information on this site was believed to be correct at the time of posting. Also, readers should be careful about relying on any information found online. Please consult a lawyer to ensure accurate compliance of the law within your jurisdiction.