PROBATE

In order to make sure that no one stole anything from the decedent or his estate ... and in order to protect the rights of legitimate heirs, all states have a process that consists of a series of events and is summed up in the general term "probate."

When a person who had a will drawn dies, his would-be executor ... or some other person takes that will to the probate court and submits it for probate. If the judge believes that the will in question is, indeed, the decedent's legitimate last will and testament, he will admit that will to probate and will appoint an executor or personal representative. Normally, the person appointed will be the one nominated in the will.

The judge then gives this person a letter authorizing him to act or to "execute" for the estate of the deceased.

The Executor then has many tasks to perform. He will want to secure all the decedent's property; he may need to appraise it for state or federal tax purposes. He fills out tax forms, pays bills and generally sees to it that the affairs of the decedent are properly wound up and that the assets are passed on to the legitimate heirs.

For this task, the Executor is paid a fee from the estate.

Of course, this is a time-consuming task. The average probate in America takes one and one-half years to complete.

It is also an expensive process; the average estate is charged six to eight percent of the estate for the entire probate process.

To many people, the worst part of probate is that it is a public process. Neighbors, business competitors, distant relatives and anyone else who is interested may, in most cases, visit the courthouse and read the probate file, including the will.

As a result of the many negative aspects of the probate process, more and more people are choosing estate planning instruments that allow them to avoid the probate process.

Assets in a Living Revocable Trust avoid probate. Moneys in a Pay-on-Death bank account avoid it ... and a piece of real estate left by life estate deed or by joint deed avoids it.

See also, Probate: "Not So Bad in Our State"