What is probate?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Jul 16, 2021

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As simple as that may seem, the process of dividing up property, money and other personal items upon a person’s death can be anything but simple. Sometimes there isn’t a will. Sometimes there is a will, but people still can’t agree on the contents and intent of the distribution. That’s why there’s probate.

Probate is the process by which legal title to property is transferred from the estate (the property or possessions) of a person who has died (the decedent) to the person or persons who are the beneficiaries of the estate. The probate process can involve proving the existence of a valid will or determining who the legal beneficiaries are to a decedent’s property if there is no will.

Probate is an important process because it provides a legal way to determine who gets what after someone has died, and it is typically administered by courts who are non-interested parties to the estate. Nonetheless, many people look for ways to avoid probate. Why?

Why Avoid Probate?

The most important reason why probate avoidance is such a hot topic is because the process itself can be very time-consuming and expensive. The typical probate can take up to 6 months to a year to complete, and it can end up costing a great deal in court and attorneys fees depending on the size and complexity of the estate. Property and money held up in probate can be a great hardship on beneficiaries who may be relying on it to survive, particularly if the decedent was a breadwinner for his or her family.

So why does probate take so long? The probate process takes time because so much must be done before the estate can finally be distributed. The matter must be placed in probate court, an executor (the person who oversees the administration of the estate) must be chosen/appointed to collect and inventory the estate’s assets, pay any debts or expenses, and distribute the remaining proceeds. He or she must also set up any trusts that may be required. The executor is also responsible for filing any necessary tax returns for the estate. Locating beneficiaries can also be time consuming if current records were not kept by the decedent.

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Alternatives to Probate

Holding property jointly is one way to avoid probate. In addition to that, most states have adopted simplified or streamlined probate procedures for estates that are below a certain dollar amount. For example, in California, estates under $150,000 can bypass probate under certain circumstances and upon filing a simple form with the probate court.

State-Specific Probate Laws

What about other states? Check out the states below for more information about probate avoidance and streamlined probate procedures:

New Jersey
New York

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