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Probate Overview – Should You Avoid It?

The estate planning attorneys at Bodie, Attorneys at Law, discuss important information regarding probating an estate.

Probating an estate may not be a top priority on your to-do list, but there are various reasons why the process should be. The following material will help you better understand the process of probate and when it’s best to move forward.

What is probate? Probate is the legal process which takes place after someone passes away. The purpose of probate is to identify the person’s property, have the property appraised, to pay debts/taxes and to distribute the remaining property as the will directs.

How does it work? After your death, the person named as the executor of your estate will file the appropriate documents in the local probate court. If you die without a will (often referred to as intestate), then the executor will be appointed by a judge. The executor is tasked with the legal responsibility of taking care of any remaining financial obligations. This includes disposing of property to paying bills and taxes. The executor also secures and manages all assets during the probate process.

In most states, immediate family members may ask the court to release short-term support funds while the probate process continues on. Eventually, the court will grant the executor permission to pay your debts/taxes and divide the rest to the beneficiaries and organizations mentioned in your will.

Does all property have to go through probate? No, most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. Furthermore, property that passes outside of your will is not subject to probate. Examples of this include a joint tenancy or a living trust.

Who is responsible for handling probate? In most circumstances, the executor named in the will is held responsible for ensuring the probate process is started. Most often, the task goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets.

If no probate proceeding is necessary, a close relative/friend can serve as an informal estate representative. Normally, families and friends choose this person and it is uncommon for multiple people to share the accountability of paying all debt, filing the final income tax return and distribution of property.

Should I avoid probate if possible? Probate rarely helps your beneficiaries and it will cost them money and time. Probate only makes sense if your estate will have complicated issues. Whether to spend your time and effort planning to avoid probate depends on a number of factors: your age, your physical and mental health, and your wealth.

If you’re young and healthy, adopting a complex probate-avoidance plan may mean constantly adjusting your plan as time goes on. If you own a small amount of property, you may not want to spend your time avoiding probate as your property may qualify for your state’s simplified probate procedure. However, if you’re in your 50s and in ill health, or own a significant amount of property, you may want to consider avoiding probate.

Probate can be a complex issue. Although these considerations can help you understand the process, there are many unique details that only an experienced attorney can help you with. For more information on probate and what to avoid, contact the experienced estate planning attorneys at Bodie, Attorneys at Law in Maryland today.