Probate is the process by which a Will is given effect, and the assets of a person who has died are distributed to his or her heirs and beneficiaries.
A probate will take a minimum of four months, and usually will take at least five months.
If a person dies without a Will, his or her estate can also be probated. In that case, it is called an Intestate Estate, and the one size fits all rules of the statute come into effect, with the assets being distributed to the nearest relatives, in the percentages set out in the statute.
Obviously, most people prefer to avoid this, and prefer to have a valid Will, so that their assets are distributed as they wish them to be, instead of as the statute requires in a default situation.
This is particularly important if a person wants to benefit someone specific, or wants to benefit people who are less closely related, or wants to benefit someone who is a friend but not a relative, or wants to benefit a charity.
A probate is sometimes thought to be something to be avoided.
In reality, a probate may be a good thing. It may be less expensive to do a simple Will based estate plan, even with the need for a probate after death, than to do a more complex trust based plan in some circumstances.
In addition, with a probate, there is a judge looking over the shoulder of the person handling the money (the executor or personal representative).
This can be a good thing, if there is any question as to how that person might behave if unsupervised.
It can also be a good thing for the executor or personal representative, since the executor or personal representative can have significant protections from claims of wrong doing by heirs or beneficiaries. It can sometimes be very difficult to get these same protections for the trustee of a trust.
Steven A. Heinrich
Divorce & Custody
Wills, Guardians & Elder Law
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