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Probate

Probate is the process of settling the estate of a deceased person.  If the estate is beyond a certain size and not structured properly, it may need to be settled among the heirs in probate court.

In most states, when a person dies the assets of that person become the property of the surviving spouse without the need for probate.  In states where this is not automatic and for smaller estates, property such as real estate, cars, bank accounts, etc. can be held in joint tenancy between the spouses so the surviving spouse will immediately receive ownership.  Everyone who has a positive net worth should at the very least keep a will naming a primary and secondary beneficiary to avoid potential problems in probate and to make sure their assets pass to the persons they wish.

In the will the estate holder names an executor to execute the terms of the will and handle the distribution of the estate's assets.  If there is no will and assets exist that are not held in joint tenancy, a probate court will decide who receives those assets and will appoint an administrator to distribute and close the estate.

Probate Procedure

Property of the deceased held in joint tenancy with rights of survivorship or other property that contractually passes to another after death in most cases will pass without the need for probate.  These can include bank accounts, real estate, automobiles, proceeds from insurance policies on the deceased and property held in living trusts.

For assets that go to probate, the court collects and inventories the assets of the deceased and pays any outstanding debts and taxes out of the assets.

Even with a will, there may be disputes during the probate process.  A claim on the estate can be made to the probate court by anyone including potential heirs unhappy with the property that they were willed or, more likely, not willed.  The court will determine the validity of any such claims.

Avoiding Probate

An estate in probate can take months to settle and distribute the assets to the proper heirs to the estate.  It can also incur a large expense in legal and court fees that reduces the size of the eventual estate.

Many people use living trusts to avoid having assets go into probate.  Upon death of the trust's owner, the trust is instructed to transfer ownership of the assets in the trust to the intended heir.  Such trusts may avoid some estate taxes but once setup are irrevocable.

Unfortunately, multi-million dollar estates (under current law) are subject to federal estate taxes.  Property included in the tax calculation include property held in living trusts, life insurance proceeds and most other estate assets net of liabilities.  Some trusts may be able to avoid estate taxation, "the death tax", but laws are constantly changing and the advice of legal counsel is necessary to properly structure such instruments.

 

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Len And Rosie: Do I Have To Be The Executor Napa Valley Register
Napa Valley Register Len and Rosie: Do I have to be the executor Napa Valley Register I just know that they are going to start fighting over their father39s estate, which is worth over 500,000. Just last week they were arguing over who would get his stereo and television. What is an executor, what does the job pay, and what can I do if

Why And How You Should Keep An Estate Out Of Probate Investopedia Blog
Why and How You Should Keep an Estate Out of Probate Investopedia blog Based on California Probate Code section 10810, the statutory fees attorneys can charge for probate are 4 on the first 100,000 of the estate, 3 on the next 100,000, 2 on the next 800,000, 1 on the next 9,000,000, 0.5 on the next 15,000,000

ESTATES, WILLS Amp TRUSTS: Common Misconceptions About Wills And Trusts TCPalm
TCPalm ESTATES, WILLS amp TRUSTS: Common misconceptions about wills and trusts TCPalm STUART It is difficult to sort through all the confusion about estate planning documents and the probate process. There are many frequently perpetuated myths about will and trusts circulating around. It is important to make sure you have your facts

Bizarre Legal Battle Over Charles Mansonaposs Body And Estate Begins In LA Co...
Los Angeles Times Bizarre legal battle over Charles Manson39s body and estate begins in LA court Los Angeles Times The fight over Charles Manson39s body and property became more complicated after a hearing in a downtown Los Angeles courtroom Monday. Saying that dispensing the killer39s property and his remains were two different legal decisions, Probate Judge David J Battle for control of Charles Manson39s remains and estate narrows to a pen pal and purported grandsonDaily Mail Judge aims to referee fight over Charles Manson39s remainsNBCNews.com all 193 news articles raquo

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Facts of Law covering estate probate law

Facts of Law - Estate Probate