What Is Probate?
Probate is the legal process of settling your estate in court after you die. Having a will does not avoid probate. The need for probate depends on the amount of property you own which is determined by state law, the type of property you own, and whether you own it alone or with others. Your property is gathered and inventoried, your debts are paid, and everything left over is divided among your heirs. Your personal
representative is responsible for “probating” your will. If you have no will or did not name a personal representative, the court will appoint one for you. Probating a will begins by filing an application with the probate court. Probate ends when all debts and taxes are paid and all assets are distributed.
When Is Probate Necessary?
The Probate laws that your estate will be probated under are determined by where you are a resident at the time of your death. If you own real property in a state other than the state of your residence, your assets will be probated under the laws of that state. An example of this would be if you farm in ND and own land or a lake home in MN or a home in AZ. Your estate would go through probate in each state. This process can take as long as several years depending on the complexity of your estate. Your family will have to travel to each county you own property in and go through the Probate process. Depending on family dynamics, your estate complexity and the value of your estate, your Will may be contested and a probate judge will have to resolve the differences. Many times this can take years to resolve and causes division in the family and often times they stop talking and getting together for the holidays. How do you want to be remembered by your family?
How Is an Estate Probated?
Your personal representative starts a probate proceeding by filing an application or petition with the probate court in the county where you lived at the time of your death. Formal probate proceedings are commenced by filing a petition for formal probate in person with the court. The petitioner then must appear before a court at a hearing. Because most people lack experience in formal probate proceedings, it is best to consult an attorney if an informal probate proceeding cannot resolve the estate. If the court finds that the petition is complete, the court will issue an order for probate and appointment of the personal representative.
Does this sound like a process you want your family go through? Let us help you setup a plan to avoid Probate!
The information presented is not legal advice but for educational purposes only.