Demystifying the Probate Process
Posted by D’Marie Kleeman on October 10, 2024
Probate is one of the most misunderstood aspects of estate planning, primarily due to its public nature. Since probate proceedings are part of the public record, anyone can access details about your assets and their distribution, potentially attracting challenges from disgruntled family members or unscrupulous parties.
What is the Probate Process?
The probate process, governed by state law, can vary, leading to misconceptions about its length. Typically, it takes six to nine months, although it may be longer for complex estates. Some states offer simplified processes for small estates or surviving spouses. Probate is essentially the legal process of settling an estate and transferring asset ownership to heirs. It starts when the executor named in the will submits the document to the court. If there’s no will, the court appoints an administrator to manage the estate.
Here’s a general outline of the probate process:
- Filing a Petition: The executor files a petition with the probate court, notifying beneficiaries and the public. Any objections to the will can be raised in court.
- Inventory and Notification: The executor inventories the deceased’s assets and notifies known creditors, who must stake their claims within a set timeframe under state law.
- Settling Debts: The executor validates creditor claims, settles debts, and pays taxes. In some cases, assets may need to be sold to cover estate obligations.
- Transferring Assets: After creditor claims are settled, the executor petitions the court to distribute assets to beneficiaries. If no will exists, state law determines asset distribution.
In some cases, the will may establish a testamentary trust for minor children or other beneficiaries. In such instances, control over assets is transferred to a designated trustee to manage on behalf of the beneficiaries.
Avoiding Probate
A revocable living trust is a common tool for avoiding probate and protecting privacy. Assets are transferred into the trust during your lifetime, and after your death, the designated trustee manages or distributes the assets according to your wishes—without going through probate.
If you have questions about probate or want to explore ways to avoid it, contact us for guidance.
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D’Marie is a tax principal with experience in all areas of U.S. Federal and New York State taxation. While specializing in performing tax services for individuals, trusts, and estates, she also provides tax services to commercial businesses, real estate-related businesses, privately held businesses, and private foundations.