What is probate?

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How is your Will going to be executed?

The main purpose of your Last Will is to help distribute your property. Your assets need to end up in the hands of the correct people, the beneficiaries. However, there are certain steps that take place between your death and your assets reaching the beneficiaries. Below we discuss these steps so you can be prepared and well-informed about all these processes.

Finding & Submitting a Will

First of all, in order for a Will to be executed, someone needs to find it first. Most people store their Will at home, keep it in digital form and/or give it to their lawyer. It smart to keep your Will in a safe place and have only specific people knowing of its existence and exact location. It is often an Executor that knows where the Will is. Moreover, people occasionally provide physical copies of their Will to their Executors. Keep in mind that only the original version is a legally binding document. 

Alternatively, you may want to submit your Last Will to a probate court so they can keep it in their possession until you die. If you don’t do that, someone else, usually your Executor, will need to submit your Will to the probate court after you pass away. After the Executor has submitted the Will to a probate court, the probate process starts. That is the second, and most complicated, step.

What exactly is the probate process?

The probate process – or simply probate – is virtually always present after someone passes away. A probate court needs to distribute your property and in order to do that they take into consideration two things: National and local laws, and your personal wishes and instructions in your Last Will. The court also needs an executor, someone that is in charge of the probate process and the distribution of assets. Having a Last Will can make a huge difference here since you can actually name your own executor. If that doesn’t happen, the probate court will name someone.

Needless to say that if anything you propose in your Last Will is illegal, the executor is not going to fulfill that instruction. Since you are not there to provide instructions yourself, you need to explain your plans clearly in your Will. The probate court then combines your  instructions with what the law dictates. This way they are able to essentially map out how they should distribute your property. 

Probate: Steps & Property Distribution

In some cases the Will does not need to be submitted to the probate court immediately after death. However, some States set deadlines regarding how much after death, a Will submission may take place.  For example, Texan law dictates that the probate process needs to start at the latest four years after death. 

But what are the exact steps of a probate process?

Verification of the Will

The first thing that needs to happen is that the court verifies the legitimacy of the Will. Having a notarized affidavit can speed up this process.

Filing a petition

Once someone files a petition that a person has died the probate starts. This is also when the executor needs to submit the Will. Moreover, the executor needs to contact and inform all beneficiaries named in the Will. This gives them a chance to contest the Will if they choose to do so. Interestingly, sometimes this petition needs to be published also in newspapers. That way creditors and debt collectors are aware that the person has passed away. This heavily depends on regional or national regulations. 

Identification of Debts

On this note, creditors have to know that the person has passed away because they can still collect debts through the estate that is left behind. This is also why it is important that if the Executor is aware of any specific debts, they contact the corresponding collectors. Straightforward, clear communication is crucial in such discussions to avoid misunderstandings. After the executor has identified all debts, they often need inform the probate court too.

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Appraisal of Property

At the same time as the above identification of debts, the executor needs to arrange the appraisal of the property. The executor legally takes control of the property included in the Last Will. With these administrative powers it is possible for the executor to complete the appraisal of the property. After the appraisal is complete, the executor compiles a detailed document to that describes the value of assets. During the phase of the probate process executors sometimes have to make difficult decisions, which brings us to the next step. 

Payment of Debts

After these two steps, it’s time to pay all debts. Depending on state regulations, creditors may have a certain window of time to make financial claims. However, that is not the only payment that the executor makes from estate funds. For instance, they will also have to pay for the funeral and any potential hospitalization expenses. Other examples of such payments include paying off mortgages, bills and credit cards. A particularly significant kind of payment is estate taxes which we will discuss a bit later.

If the funds of the deceased are not enough to cover all these expenses, the executor will have to make further difficult decisions. For instance, they will use their administrative powers to even sell property in order to generate the funds necessary to pay off debts. 

Distribution of Property

Once all debts have been settled, the distribution of property to beneficiaries can finally begin. This is when a Last Will can be crucial to your Executor, since it will give them explicit instructions. Moreover, any special directives present in your Last will take full effect now. For example, if you have pointed out that you would like to establish a Trust for your children this is the time to set that up. To round off the probate, the executor often needs to submit a final detailed document to the probate court. This document explains how they have distributed the estate including every single asset if necessary. After the probate court approves of the document, the probate process is officially over.

Final Thoughts

The probate, can clearly be a complicated, long process. This doesn’t change the fact, though, that you can still be in control of your estate. Not to mention that there are also ways to speed up probate.

Creating your own, Last Will can greatly determine who your assets are going to end up with. Not to mention that you can choose your own executor – a person that you can trust with the task!

You can make all these, and much more decisions simply by filling out Myend’s E-Will.