Following someone’s passing, the will that they leave will go through the probate process. Probate occurs when someone passes and they are the sole owner of assets with no designated beneficiary.

Typically, probate is only necessary when assets value more than $50,000, but it’s still vital to recognize what this process is and what it means for your assets and loved ones. The Surrogate Court in the county in which the person passes handles the probate process to determine the validity of the will and ensure it’s properly executed.

A will is only valid if it is signed with two witnesses minimum present. Each witness must also sign to declare that the other witness was there. If the person who makes the will is also deemed incompetent or under duress, it can negatively impact the will’s validity. As you go through estate planning, you should understand the probate process and how you can take steps to protect your loved ones and assets moving forward.

Understanding the Probate Process

Probate occurs in five main steps, including the following:
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A petition for probate. The estate’s executor must file the will and a copy of the decedent’s death certificate along with the probate petition. This petition should also include any and all supporting documents for the Surrogate Court to analyze its validity.
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Distributing remaining assets. If there’s a will in place, the assets will be distributed based on how the will states. However, if no will exists, the state intestacy laws come into play, and the Surrogate Court will determine how assets will be distributed and to whom.
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Giving notice to others. Once you file the necessary paperwork and pay the filing fee, the creditors, beneficiaries, and heirs must be notified about the probate process.
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Create an inventory of property and assets. The will’s executor must inventory all property and belongings within the estate and ensure they are properly appraised to establish value.
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Payment to outstanding debts. If estate taxes apply, this must be paid prior to distributing property. Similarly, any outstanding payments or debts are paid before the property is distributed. This includes mortgage payments, income taxes, property taxes, etc. If the estate cannot pay the debts, the court may order that assets be sold.
While some probate matters can be simple, certain obstacles can arise and make it more challenging to endure. For instance, if someone decides to contest the will and its validity, it can help to have a lawyer on your side who can guide you through this process.

Can I Protect My Loved Ones from Probate?

Keep in mind, some of the assets within the estate may not have to go through probate. For instance, if there’s a bank account or life insurance policy with a named beneficiary, these assets won’t go through probate. Similarly, non-probate assets can include jointly held bank accounts and real property, and retirement accounts. However, there is an option that helps protect your family from having to endure probate: a trust.

You can protect nearly any asset by creating a living trust. With this legal document, you can name someone who will become the trustee and take over the trust after you pass away. As a result, you transfer ownership of the property within the trust. After your passing, the terms of the trust come into effect, and the successor trustee can begin to transfer your assets to the beneficiaries you name within the trust. Best of all, this allows your loved ones to avoid probate court proceedings, and your decisions and final wishes are seen through as you intend.

Navigating the State’s Probate Court

It’s not always necessary to have a lawyer when going to probate, but it’s never a bad idea to have your best interests protected by a legal professional. Working with a lawyer helps you manage some of the more complicated issues that can arise throughout the probate process. Without a lawyer, someone can travel the validity of the will based on competency or duress. If one person can successfully challenge a will, it can impact your last wishes and beneficiaries may not receive what they should.

At The Law Office of Nicole Israel, PLLC, we work to provide you with the comprehensive legal services you need during a difficult time. We know what probate means for someone’s estate, and family members deserve the right to grieve after losing someone they love. They shouldn’t have to worry about the probate process and other obstacles that can arise. Our probate lawyer will be there to help you every step of the way, giving your loved ones peace of mind when it matters most.

Ready to discuss your options?
Call us today and learn more about our services. We’re here to help you!