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Is 'Probate' a bad word?

Thoughts on Estate Planning and Probate.

Some people talk about probate like it is an evil to be avoided at all costs.

What is probate?  What does it mean?  What does it not mean?  Is it really expensive?

This article is intended to answer those questions and put some minds at ease.

Simply put, probate is the process of transferring assets owned by the dead to those who are still living.  The law allows people, with limited exceptions for spouses and dependent children, to decide for themselves who will administer the estate and who will receive the estate when they die.  That is accomplished by writing a valid will, or Last Will and Testament. (Note: to be valid the will, and its signing, must strictly comply with the law).

That Last Will and Testament must be scrutinized and accepted after the person writing the will (testator or testatrix) dies.  Then, if valid, the person named in the will to handle the affairs of the deceased (if willing) has to be appointed and authorized to do so.  Finally, there is oversight over the administration of the will to ensure that its terms are followed.  How is this done?  By and through the probate court.

The probate judge will review the will, accept it, and ensure that it is followed both with respect to who is authorized to administer the estate and who is to inherit from the decedent.  The probate judge will also make sure that the probate laws and procedures are followed.  The probate court issues "Letters Testamentary" to the personal representative (executor) so that person has court authority to administer the estate.

If a person dies without a will the law has a plan for distribution of that person's estate - to that person's closest relatives, by marriage and/or by blood.  Still someone needs to be appointed by the court to administer the estate with court-issued "Letters of Administration."  And the court needs to determine the appropriate heirs for distribution.  This is another kind of probate.

Contrary to popular belief, probate does NOT mean that the State, or any governmental entity, takes the decedent's money and property.

So, why the fuss?  Probate is a public proceeding.  There are court costs and other expenses involved in doing a probate.  And it is advisable to hire an attorney to help.

Look at it this way:  There is a certain amount of work that is needed to transfer property from the dead to the living.  The more of that work that is done before a person dies, the less work is left to do after death.

If you have an attorney write a valid will for you then your probate proceeding will likely be less time consuming and costly than if you die without a will.

If an attorney prepares a Living Trust for you then there will likely be no probate required at all.

Neither the cost for a Last Will and Testament, nor that for a Living Trust, approaches the expense of a probate, whether formal or informal.  Therefore, you could consider good estate planning paying for your probate in advance - so your loved ones don't have to - at a deep discount.

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Stephen J. Buhler, Attorney at Law
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