Probate FAQ

When a person dies, someone must step in to wind up the deceased person's affairs. Bills must be paid, property must be accounted for and items must be passed on to the people chosen by the deceased person. If state law requires that all this be handled through court proceedings, the process can take many months.

Because probate is time-consuming, expensive and usually unnecessary, many people plan in advance to avoid it. There are a number of ways to pass property to your inheritors without probate. Some of these probate-avoidance methods are quite simple to set up; others take more time and effort.

What is probate?

Probate is a legal process that includes:

proving in court that a deceased person's will is valid (usually a routine matter)
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, who are paid from estate property that would otherwise go to the people who inherit the deceased person's property. Property left by the will cannot be distributed to beneficiaries until the process is complete.

Probate rarely benefits your beneficiaries, and it certainly costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can't easily be paid from the property you leave.

Property That Avoids Probate

Not all property has to go through probate. Most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure. In California, for example, you can pass up to $100,000 of property without probate, and there's a simple transfer procedure for any property left to a surviving spouse.

In addition, property that passes outside of your will--say, through joint tenancy or a living trust--is not subject to probate. For a discussion of the most popular probate-avoidance methods, see Easy Ways to Avoid Probate.

Who is responsible for handling probate?

In most circumstances, the executor named in the will takes this job. If there isn't any will, or the will maker 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.

If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.

Should I plan to avoid probate?

Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health and your wealth. If you're young and in good health, a simple will may be all you need--adopting a complex probate avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate. Your property may even fall under your state's probate exemption; most states have laws that allow a certain amount of property to pass free of probate, or through a simplified probate procedure.

But if you're older (say, over 50), in ill health or own a significant amount of property, you'll probably want to do some planning to avoid probate.

Nolo Press: www.nolo.com