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Facts - Books - News    U.S. Facts Of Law:


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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7 Big Estate Planning Mistakes Not Avoiding Probate Forbes
Forbes 7 Big Estate Planning Mistakes Not Avoiding Probate Forbes This is the third installment of my seven part series on major estate planning mistakes. The first two are here and here. Not avoiding probate. When an asset passes to others through a will, it has to go through the probate process. Probate can be both

PROBATE NOTICE: Emmery C. Liebeg Estate File No. 25PR18609 Republican Eagle
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Len And Rosie: Avoid This Living Trust Problem Napa Valley Register
Napa Valley Register Len and Rosie: Avoid this living trust problem Napa Valley Register Mother has passed away and my sisters, and I are her co executors and co trustees. We were told by the bank that we are unable to open an estate account to access any of her funds unless we put the estate in probate. Why did we have to have a trust if

Attorney Ambrecht Attends Estate Counsel Meeting Noozhawk
Noozhawk Attorney Ambrecht Attends Estate Counsel Meeting Noozhawk Attorney John W. Ambrecht, an expert in estate planning and estate tax law, recently attended the annual meeting of the American College of Trust and Estate Counsel ACTEC, a nonprofit for the world39s top probate and estate planning attorneys. The and more raquo

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Facts of Law covering estate probate law

Facts of Law - Estate Probate