Information Regarding Probate
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What is Probate                                  How Long Does Probate Take

How Does Probate Work                     Ways to Bypass Probate

Does all Property go Through Probate  Steps in the Probate Process

Who is Responsible for Handling Probate

What is Probate?

Probate is a legal process that takes place after someone dies.  It includes:

Proving in court that a deceased person's Will is valid; 

Identifying and inventorying the deceased person's property;

Having the property appraised;

Paying debts and taxes, and

distributing the remaining property as the Will directs.

Typically, probate involves paperwork and court appearances by lawyers.  The lawyers and court fees are paid from estate property, which would otherwise go to people who inherit the deceased person's property.

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How Does Probate Work?

Probate usually works like this: After your death, the person you named in your Will as executor - or, if you don't have a Will, the person appointed by a judge - files papers in the local probate court.  The executor proves the validity of your Will and presents the court with a list of your property, your debts, and who is to inherit what you've left.  Then, relatives and creditors are officially notified of your death.

Your executor must find, secure and manage your assets during the probate process, which commonly takes about a year.  Eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your Will.  Finally, your property will be transferred to its new owners.

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Does All Property Have to go Through Probate When a Person Dies?

No.  Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure.  In addition, property that passes outside of your Will - say through a joint tenancy or a living trust - is not subject to probate.

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Who is Responsible for Handling Probate?

In most circumstances, the executor in the Will takes this job.  If there isn't any Will, or the Will fails to name an executor, the probate court names someone (called an administrator) to handle the process - most often the closest capable relative, or the person who inherits the bulk of the deceased person's assets.

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How Long Does Probate Take?

For most estates the process can take many months, even when there are no objections to the Will and the estate is uncomplicated.  If the estate is large or there are significant problems, such as estate tax controversies or an attempt to challenge the Will, it can take years.

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Ways to Bypass Probate:

you can give all your property away before you die, but you may have to pay a gift tax and once you give something away, you can't be sure that you'll get it back if you change your mind.
You can hold your property jointly with another person so it goes to him or her automatically upon your death.  
You can set up trusts that will be paid upon your death to any person you name.  [A trust is property given to a trustee - a friend or relative chosen by the person setting up the trust - to manage for the benefit of someone else.  A popular form is the revocable living trust, which the person who sets it up can change or revoke while still living.  At death, the trustee pays the deceased's debts, taxes and expenses, including the trustee's fees and the costs of maintaining trust property and then turns over the balance of the property to the beneficiary.]

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Steps in the Probate Process:

Someone dies.
Someone, often the person named in the Will as executor, files the Will with the probate court, usually in the county where the deceased lived.
The executor inventories all assets and liabilities of the estate.
The executor signs the petition for probate, a document summarizing the Will's provisions and naming the heirs.
The executor may have to locate the witnesses and file sworn statements from them - or even have them testify - to affirm that they witnesses the signing of the Will.  This step can be avoided in some states if the witnesses sign a notarized affidavit at the time the Will is signed.  [Texas is one of them.]
The executor sends a formal legal notice telling each heir and beneficiary that the Will has been offered for probate.
After this step, anyone wishing to challenge the Will may appear in court to do it.
Assuming no objections are made or upheld, the Judge approves the Will and formally appoints the executor.  
The executor settles all accounts by paying debts and taxes.  The executor must provide details to certain beneficiaries about what property the executor received, what was paid in expenses, taxes and other costs, and what was given to each beneficiary.
The executor pays out the remaining assets to beneficiaries and makes a final accounting of the estate to the court.
The probate Judge rules the estate formally closed or, to save legal fees, the beneficiaries agree to release the executor by written agreement.

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