 Wills
We offer a comprehensive library of
estate planning documents, including wills and living wills.
Whether you are married, single, divorced, or widowed, we
have the legal documents you need. You will also find
statutory wills and other estate planning documents.
What is
probate?
Probate is a legal process that takes place after someone dies, specifically
resolving all claims and distributing the decedent's property under the valid
will. Probate is a service that a Surrogate Court provides to confirm the
validity of a deceased person's will. Once a will has been probated by the
court, everyone can rely on its authenticity. Probate protects the instructions
of the deceased, confirms the executor as the Personal representative of the
estate, protects the interests of family members who may have claims against the
estate, and protects the executor against claims and law suits. It includes:
- proving in court that a deceased person's will is valid (usually a routine
matter)
- identifying and inventorying the deceased person's property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there's no
will) directs.
- Typically, probate involves paperwork and court appearances by lawyers. The
lawyers and court fees are paid from estate property, which would otherwise go
to the people who inherit the deceased person's property.
Does all property have to go through probate when a person dies?
No. Most states allow a certain amount of property to pass free of probate, or
through a simplified probate procedure. In California, for example, you can pass
up to $100,000 of property without probate, and there's a simple transfer
procedure for any property left to a surviving spouse.
In addition, property that passes outside of your will -- say, through joint
tenancy or a living trust -- is not subject to probate. For a discussion of the
most popular probate-avoidance methods, see Ways to Avoid Probate.
Should I plan to avoid probate?
Probate rarely benefits your beneficiaries, and it always costs them money and
time. Probate makes sense only if your estate will have complicated problems,
such as many debts that can't easily be paid from the property you leave.
Probate generally lasts several months, occasionally
over a year before all the property can be distributed, and incur substantial
court and attorney costs. One of the many ways to avoid probate is to execute a
living trust. This is a separate entity to which a person transfers ownership of
his real property (house, etc.,) from himself to a trust which he controls and
can revise at any time (except in the case of an irrevocable trust.) Upon
death, the persons named as beneficiaries in the trust acquire ownership of it
and, therefore, the property the trust owns. As probate is a public process, a
living trust has the added advantage of preserving the privacy of the deceased
and his heirs as well as avoiding some estate tax.
Life insurance, savings accounts, and joint tenancies
with the right of survivorship are some of the other ways people use to avoid
probate. Whether to spend your time and effort planning to avoid probate depends
on a number of factors, most notably your age, your health, and your wealth. If
you're young and in good health, adopting a complex probate-avoidance plan now
may mean you'll have to re-do it as your life situation changes. And if you have
very little property, you might not want to spend your time planning to avoid
probate because your property may qualify for your state's simplified probate
procedure.
But if you're in your 50s or older, in ill health, or own a significant amount
of property, you'll probably want to do some planning to avoid probate.
Click Here To
View How to Avoid Probate in your State
Probate Laws - By State
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