Sometimes Probate Should be Feared

by M-Gillies

From the tax man to beneficiaries everyone has their hands out for part of the estate.

It’s the scary campfire stories of post-funerals.

It’s the bogeyman of the last will and testament.

It’s a word that seems almost synonymous with horror, stress and aversion.

It’s that legal process that oversees the collection, inventory of assets, liquidation of liabilities, payment of necessary taxes and the distribution of property to heirs after someone’s death.

It’s called probate, and simple research into the process of arranging funerals, organizing assets and distributing property will explain in the most cringe-filled way that it is something to be avoided.

But why is it probate is this feared?

After someone dies, their estate is taken into a legal process, spearheaded by the executor of the estate, who brings the deceased’s will to probate court to validate it, identify and compile an inventory of the assets of the estate, appraise property, pay debts and taxes, and then distribute the remaining property to beneficiaries as per the direction of the will.

Seems straight forward, bureaucratic and necessary, right?

Not for some people.

Typically, when an estate goes into probate, it involves paperwork and court appearances by lawyers. As part of the process, the court fees and lawyers are paid by the estate property, which would otherwise have gone to the beneficiaries of the deceased.

Generally, most individuals will try to avoid their estates from going to probate as it is a lengthy process which can take anywhere from a few months to a year to amend. This will see a portion of the estate’s earnings being drained in legal fees.

However, in many cases there are ways of preventing an estate from going into probate, which include clearly stating beneficiaries, trustees, executors and ensuring all documents are made accessible at the time of death. If planned carefully, most estates may not have to go through the process of probate.

How does the probate process work?

After your death, the person named in the will as your executor files papers in the local probate court to prove the validity of the will. When the executor files the will, he or she will also present the court with a list of your property, debts and who is to inherit what is left. It is after this information is presented and officiated that creditors and relatives are notified.

During the process of the probate, the executor must find, secure and manage the assets listed in the will, and depending on the contents of your will, and the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities or other property. This means that if your estate has many outstanding debts, your executor may have to sell a portion of your property to pay the debts down.

The probate process isn’t always quick and could take between a few months to a year. During this time, family members may ask the court to release short-term support funds before the court grants the executor permission to pay your debts and taxes, and divide the rest among the people or organizations named in the will.

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