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What is the Probate Process?
Here's an overview of the probate process, and how you can avoid it.
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If a relative or spouse dies intestate (without a will), you may be surprised to find the property they owned stuck in the probate process. Even if the decedent already had a will the estate may still be probated to prove its validity. Probate is the legal process where the will, if there is one, is validated before the courts and all debts are settled before the designated beneficiaries receive their share. This is a lengthy process, and can take several months or even a few years if there are complications. According to government data most homeowners' estate will be probated. Even in America's “cheapest city”, McAllen, TX the average house costs a cool $178,000- more than $28,000 more than the minimum value to be probated.
What Happens When There is No Estate Plan?
If there was no legal plan in place for the house then you will most likely need to hire a probate or estate planning attorney. Traditionally the probate attorney and attorney court fees will be paid through the estate property. In addition the executor of the will is allowed by law to charge the same fees as the probate lawyer- but because they are usually a close friend or member of the family it is not uncommon for them to waive any fees. Multiple petitions will need to be filed, any outstanding debts will be settled, your last tax return will be prepared and then your assets will be distributed to the beneficiaries.
If there is no will then each state has rules dictating the legal process in which the estate will be distributed. Property, cars and other objects of value will all be distributed through the probate process. Assets such as life insurance policies or retirement accounts that have a designated beneficiary will be allowed to immediately bypass the probate process. Estates smaller than $150,000 will also be allowed to bypass the probate process.
But the probate of your estate isn't necessary and can be avoided by careful planning- If your house or assets are worth more than $150,000, then you can completely bypass the probate process by placing the house in a trust. An estate planning attorney in your area who specializes in probate can help you address your individual goals and create a plan that best suits the type of assets you own. Avoiding probate helps expedite the transfer of your estate to the ones your love, while reducing the extensive legal and tax complications that arise from the probate process. In addition the value of your estate will not be compromised by court and attorney fees.
Probate is a complicated process, with well over 100 steps. By seeking the assistance of a probate attorney you can guarantee the speedy and proper distribution of the estate- and ensure that it is passed on in accordance to your wishes.