The Probate Process: What You Need to Know

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This post originally appeared on Dummies.com.

Probate is a term that is used in several different ways. Probate can refer to the act of presenting a will to a court officer for filing — such as, to “probate” a will. But in a more general sense, probate refers to the method by which your estate is administered and processed through the legal system after you die.

The probate process helps you transfer your estate in an orderly and supervised manner. Your estate must be dispersed in a certain manner (your debts and taxes paid before your beneficiaries receive their inheritance, for example). Think of the probate process as the “script” that guides the orderly transfer of your estate according to the rules. (For more info, see What’s a Probate Estate All About?)

last willMany people think that probate applies to you only if you have a will. Wrong! Your estate will be probated whether or not you have a will.

  • With a valid will: If you have a valid will, then your will determines how your estate is transferred during probate and to whom.
  • Without a valid will: If you don’t have a will, or if you die partially intestate, where only part of your estate is covered by a valid will, the laws where you live specify who gets what parts of your estate.

So read on for a few important points about probate you need to know.

The probate process

Even though you won’t be around when your estate goes through probate (after all, you’ll be dead), you need to understand how the probate process works. At the most basic levels, the probate process involves two steps:

  • Pays debts you owe
  • Transfers assets to your beneficiaries

A state court called the probate court oversees the probate process. Because probate courts are state courts and not federal courts, the processes they follow may vary from one state to another. Yet despite their differences, these courts all pretty much follow the same basic processes and steps, which typically include:

  • Swearing in your personal representative
  • Notifying heirs, creditors, and the public that you are, indeed, dead
  • Inventorying your property
  • Distributing your estate (including paying bills and any taxes)

Swearing in your personal representative

In your will, you name who you want to be your personal representative — that is, the person in charge of your estate after you die. However, the court determines the personal representative for your estate under the following circumstances:

  • You die without a will.
  • You have a will but for some reason didn’t specify who you want to be your personal representative.
  • The person you selected has died or for some reason can’t serve — and you didn’t “bring in someone from the bullpen” to replace your original choice.

Check out the rest of the post at Dummies.com!

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