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What is Probate?

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Probate is the legal process that governs the administration of a deceased person’s estate.  The purpose of the probate process is to:

    • Establish the validity of the will
    • Appoint an executor to administer the estate.
    • Ensure that all interested parties are notified.
    • Govern the settlement of all debts and claims against the estate.
    • Ensure the distribution of probate assets in accordance with the terms of the will or in the absence of a valid will, in accordance with state laws. All debts and claims against the estate must be settled prior to the beneficiaries receiving any probate assets.

How long does the probate process take?

Generally, the probate process lasts between 6-9 months however, the process may take longer if:

    • There are disputes regarding the validity of the will. Beneficiaries may argue that the decedent was under undue influence, lacked the mental capacity to legally execute the will or the document was forged.
    • Claims against the estate take longer to settle.

Why do I need to go through probate?

Probate provides proof of legal ownership

Real Estate

    • The probate process provides proof of legal ownership. Therefore, if you inherit property, you must be able to provide proof of ownership to potential buyers.
    • You may be required to provide proof of ownership to qualify for federal assistance ie. in the event of a natural disaster.

Stocks, bonds, bank accounts

    • The bank or broker may require proof of ownership to transfer the funds.
    • To protect its interest against claimants, the bank or broker may require that the estate goes through probate before transferring or distributing the funds.

Probate protects beneficiaries

    • Probate protects beneficiaries against adverse claims against the estate. It establishes a statute of limitations on claims by people who may challenge the validity of the will or have claims against the estate.  In the absence of a probate proceeding, claims against the estate may be subject to the contract’s statute of limitations.
    • Probate requires that the executor notifies all interested parties. Any claim against the decedent or challenges to the validity of the will, must be filed within the probate statutory time frame.
    • The probate statute of limitations is generally, shorter than a standard contract statute of limitations. If the claimant received proper notice and the claim is not filed within the statute of limitations, the claim may be forever barred.  This is important even if the decedent died intestate (without a will).

Is the probate process confidential?

No. Probate is a matter of public record. If privacy is a concern, you should speak with an estate planning attorney to discuss estate planning options that will allow you to avoid the probate process and maintain your privacy.


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