What is Probate (and How Can I Avoid It)?

Though a large percentage of Americans go through the probate process (and some will go through it several times), they are often completely unfamiliar with it at first.

Generally, probate is a legal process where a deceased person’s debts are paid off and any remaining assets are distributed to heirs or beneficiaries in accordance with the deceased person’s will or as dictated by state law if there is no will.

There are 5 general steps of probate, each of which has specific legal requirements that must be followed:

  1. Designate a Personal Representative to implement the probate process. The Personal Representative will usually hire an attorney to help guide them through the process. Both the Personal Representative and the attorney can be reimbursed by estate funds.
  2. File the will with the court, if there is one, and prove its authenticity. If there is no known will, the matter can be filed “intestate,” which means the state laws will decide priority of distribution.
  3. Identify the deceased person’s assets and debts. This often includes appraising any property the deceased person owned and protecting that property. This information then goes to the court in an inventory.
  4. Pay debts and taxes.
  5. Distribute any remaining assets to heirs and beneficiaries, either in accordance with the will or as dictated by state law if there is no will.

The probate process—though necessary for many—can be highly difficult legally as well as financially and emotionally for all involved. The best way to avoid the process is by planning ahead. Provide clear and complete directions to loved ones by creating wills, trusts, and business plans to let them know exactly how things should go after you pass.