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Estate planning is one way to put your mind and the minds of your loved ones at ease in the event of your passing. However, one source of anxiety is the process of probate, which occurs on assets regardless of whether or not you left behind a will. In fact, anything that is left in your name at the time of your death will have to go through probate.
What Is Probate?
Probate is the state’s process of authenticating a will, paying off the debts of the decedent, and transferring the remaining assets to their beneficiaries and living heirs. Property that will go through probate is commonly called the probate estate.
The entire process is meant to carry out the decedent’s last wishes, but it can also be a lengthy and expensive one. Here, we’ll break it down for you:
- Determine if the deceased left a will and authenticate the document.
The first step to probate is determining whether or not the deceased left a will. If the decedent formed a living trust instead of a will, it will not need to go through probate. If you cannot locate a will or if the decedent did not form a trust, then the estate is “intestate.” This also applies if the will that was found for the decedent is determined to be invalid by the probate court. When an estate is intestate, that means that the probate court will divide up the assets according to state law.
- Identify or name an executor
The executor, who is often named in the will of the decedent, is the person responsible for seeing that the deceased’s last wishes are met. If the decedent did not leave a will, then the probate court will appoint someone to serve as executor.
- Open the estate with the court
Executors are also the ones driving the ship when it comes to the probate process. They will file the will with a probate clerk and begin the probate process. This often involves some paperwork, but nothing too confusing.
- Identify the deceased’s assets and important documents
After opening the estate with the probate clerk, the executor will locate and identify the decedent’s assets. The executor will freeze the decedent’s funds and identify the appropriate institutions of their passing. They’ll go through bank statements, personal accounts and important documents to gain a full understanding of what exactly the decedent had in his or her name. They’ll find documentation for property, life insurance, stocks and bonds, investments, vehicles, titles and deeds. They’re also responsible for assets like artwork and memorabilia. Additionally, they will have to gather up the decedent’s tax paperwork for the last three years of their lives.
- Value those assets
Every piece of property has its value, and that value must be determined and documented. Some assets will be easy to value–bank accounts, property, financial accounts–but others need to be professionally appraised. Artwork, jewelry, memorabilia, and collectibles will have to be valued at the date of their death.
- Pay the decedent’s income taxes and debts
Then, the income taxes and estate taxes that might be due must be paid. That means that the decedent’s final federal and state income taxes must be prepared and filed, as well as any estate taxes paid.
- Pay deceased’s final bills and legal fees
Before the remaining assets can be distributed, the executor must identify any outstanding bills and pay them from the estate funds. Many state laws require that the executor put a death notice in the newspaper so that creditors may make a claim for money that they are owed. This is also when legal and accounting fees will be settled.
- Distribute remaining assets to beneficiaries
The very last step in all of this is to distribute the remaining assets to the beneficiaries. The executor submits an account of the assets to the probate court judge, including any transactions they made while executor of the estate, and the judge issues an order to close the estate and begin the transfer of assets. If there is no will outlining what assets go to whom, the order will depend on state law.
The entire probate process can take anywhere from a few weeks to six to nine months depending on the case.
Looking for help with probate or estate planning? An experienced probate lawyer Roseville, CA relies on can guide through the sometimes confusing and time consuming probate process.
Thank you to our friends and contributors at the Yee Law Group for their knowledge about probate and estate planning.