How to actually avoid a lengthy Probate? – Part 1

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You hear the word Probate and you feel like you are in a bad dream!  Probate can be challenging for a few, but for the vast majority of us, it’s actually not as bad as it’s made out to be.  Really!

Consider This: unlike professionals, like lawyers and judges, you and I don’t expect to encounter the Probate Court during our lifetime! Some of us may be Executors for family or friends, meaning we have agreed to or are called upon to manage and settle the estate of a loved one. Hopefully, we only have to do this once or twice in our lifetime.

Recognizing this, Probate Courts have set up help lines, classes and even provide customer service!

There are many assets that do not need to go through Probate if set up properly because they follow different laws.  For example, if you name your beneficiaries and review and update them on an annual basis or when a life event occurs such as a marriage or divorce, these accounts will transfer directly to the beneficiary Probate.

When we do encounter the Probate Court, it is a very important responsibility and usually time-consuming for the Executor.  In the simplest of cases the Probate process can last between 4 and 6 months, and more complex cases can last two or more years.

There are many assets that do not need to go through Probate if set up properly because they follow different laws.  For example, if you name your beneficiaries and review and update them on an annual basis or when a life event occurs such as a marriage or divorce, these accounts will transfer directly to the beneficiary Probate.

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You can set up your assets according to the inheritance laws related to these assets as long as you are “Willing and Able and of Sane Mind”.  The fewer assets the Court has to oversee, the faster your estate can be settled and the faster your family can access necessary funds.  This can reduce stress for your family, Executor, and your heirs!

This article is written in two parts:

  • Part 1: What exactly is Probate and what is a Probate Court?
  • Part 2: What assets pass outside Probate and how to set up or update them in 55 minutes or less?

Part I. What exactly is Probate and what is a Probate Court?
Probate is a process through which your estate (what you left when you died) is settled. This process is overseen by the Probate Court. Probate Court is a division of the State’s Court System. In New York State, it is a division of the Surrogate Court. In Pennsylvania, it is called the Court of Common Pleas, in California, it’s called Superior Court.

What does a Probate Court do?
The Probate Court validates your Will (if you have one), ensures that the Executor is of sound mind and body and gives the Executor a piece of paper called a “Grant of Probate.” Armed with this authority and your Death Certificate, the Executor runs around trying to execute your wishes. Every now and then, the Executor files a progress report with the Court and the Court gives the thumbs up that the Executor is doing his or her job. After all, you left instructions!

The Court’s job becomes a bit harder when you didn’t leave instructions! If you did not have a Will, the Court will appoint an Administrator. This is often a close relative or a stranger who is a professional as Administrator. The Court will issue a “Grant of Administration” which along with your Death Certificate allows the Administrator to function as “You”. The Court oversees this dude or dudette and makes sure he/she doesn’t run off with your assets.

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Now, let’s say your children don’t get along. You may have thought that they would get along better after you died. But alas, it got worse! One of them filed a “Contest” against your Will. The Probate Court handles this and similar contest cases, estate fraud, guardianship of adults and minors and related issues.

Who needs Probate?

Everyone who dies!

Every death with or without a Will is processed by the Probate Courts. Which means a whopping 2,596,993 cases were handled by the Probate courts in 2013 (source: CDC).

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Why everyone? Do you really mean Each and Everyone who dies?

Yep!

If that’s the case, why does everyone write about avoiding Probate?

I am scratching my head about that! You can take steps to make it simpler or even simple, but, someone still has to file the proper forms with the Court within a certain period after your death. This varies by State, but, generally it’s within 30 – 60 days. Your executor does not necessarily have to start the Probate process at this time, however, States have limitations on how long you can wait.

Let me repeat: You hear the word Probate and you feel like you are in a bad dream! Probate can be onerous sometimes, but, for the vast majority of us, it’s simply not as bad as it’s made out to be. Really!

Next Week:  What assets can pass outside Probate and how to set up or update them in 55 minutes or less?

Disclaimer: IANAL is Reddit parlance for I Am Not A Lawyer.  If you think you need one, please seek one out, preferably one who practices in the State in which you live.

 

If you missed  “Don’t think you need a Will?  Think again.”, read it here and to download Your Free One Page Checklist  – Get Your Will and Advance Directives done in 55 minutes!, click here.

Part 2:  What assets can pass outside Probate and how to set them up or update them in 55 minutes or less!  We’ll include a checklist so you can easily update your take action.  You can also check our blog at www.jazmine.com/blog.

Do you like this article?  Let me know your #1 takeaway in the comments section below.

Jasmine Alexander is the Founder and CEO of www.jazmine.com, an online organizer that safely stores personal records, account numbers, ownership documents and everything in between. Jasmine has a B.S. in Computer Science from New York University and a M.B.A. from UCLA Anderson School of Management.

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