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What is probate court and how do I navigate it?

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The Executor Adviser from Executor.org

The Executor Adviser is an advice column created by Executor.org for Legacy. Executor.org's experts aim to help readers with questions about executorship and provide comprehensive, free online resources to guide executors through this complex process.

Probate court is often the centerpiece of the legal process of settling an estate—with or without a will. Given that, it's helpful for you to have a basic understanding of it as many people find it confusing and a bit intimidating.

Literally speaking, probate court is the court in your community that handles the final administration of the estate of a deceased person. Typically, navigating probate court requires the help of an estate attorney, or at least a good level of guidance from the probate judge and other court officials. Most executors are in the role for the first time, so professional help is typically recommended.

One big reason you may need help navigating probate court is that, from the beginning, you need to be sure that you follow all of the court's rules. For example, to begin the administration of a deceased person's estate, you need to file a will (if there is one) in probate court. But you can't just drop the will off at the court—you need to have the appropriate legal paperwork to go with it. And it's important that this document is written properly to get off on the right foot with the court and not cause further delay in the process.


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Keep in mind that not all estates need to go through probate. In general, the bigger and more complex the estate, the more likely it will. The specific criteria, however, is if an asset with a title will need to be re-titled as a part of the process. This would typically relate to ownership of real estate, autos or boats. If all your assets are in trust, owned with a joint right of survivorship with someone who is still alive, or are in financial accounts with a designated beneficiary, you can avoid probate in most cases. Most states also offer "small estate" options for estates with values of less than $50,000 or $100,000.

Because the laws in each state vary, the best way to know whether the estate you are working with needs to go through probate court is to ask a local attorney. You also can seek guidance from the court itself (remember that you’ll be working with the probate court in the county where the deceased resided).

You also can sometimes avoid the probate process with sophisticated estate planning. This occurs most often with complex and high-value estates (typically those who put an effort into avoiding the probate court are those whose estate has high financial value). If the estate is small and simple, it may end up being more efficient and cost-effective to stick with the probate process.

Another important thing to know about going through probate is that it isn't a speedy process. The court process usually takes about a year to complete, with even the simplest estates taking at least three to four months, at a minimum. This wait can sometime push beneficiaries to grow impatient, especially because assets cannot be distributed to heirs until the very end of the process. As executor, you might be face with dealing with frustrated beneficiaries who want or need their share of the estate. However, you will need to follow the instructions of the probate court—otherwise you could face legal issues.

If you need to go through probate court while settling your estate, get organized, get help, and prepare to wait, but know that the courts will help you manage the process in an organized manner and ultimately help you complete your role successfully.

Have a question about executorship? Get an answer by sending an email to [email protected].


About the Author: Patrick O'Brien is CEO and co-founder of Executor.org, a free, comprehensive online resource that helps executors manage their responsibilities and duties in this complex role. The free tools include a helpful step-by-step interactive guide for executors and invaluable tips on everything from planning a funeral and keeping beneficiaries happy to dealing with grief and managing estate assets.


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