Wednesday, January 28, 2009

How to Probate a Will

You will need to learn how to probate a will if a loved one dies with property in their name alone and no beneficiary designation attached. You need to know how to probate a will because their estate will go through probate. Probate is a court procedure designed to follow the directions in the Will with respect to who handles the estate and who receives the property. There needs to be a probate because the only person who could legally sign to transfer the assets is deceased.

The probate consists of the following steps:

• Initiate the probate - The executor named in the Will completes an application if the probate is informal or petition if it will be formal. Whether you will be conducting a formal or informal probate depends on the facts and circumstances of your individual case. Your attorney will give you the advice on which to select.

• Pay Valid Debts and Taxes - Unfortunately you cannot get out of your debts and taxes by dying. They need to be paid before any property can be distributed to your beneficiaries.

• File the Required Court Forms including an inventory of assets owned by the decedent at their death. You also will file a final accounting. The final accounting is the record of everything that happened from the date of death until the final distribution. As an attorney, I have found this to be the most difficult aspect of the probate. You will need to make sure it balances to the penny as it will be reviewed by the court and you may not be allowed to close the probate until it does.

• Divide and distribute the assets per the direction of the Will.

This may sound like an easy process but based on my fifteen years as an attorney, it is not. Most probates take over a year to complete and end up costing the estate thousands and thousands of dollars in attorney fees. You could try to do the probate without an attorney but there is very little detailed guidance on how to probate a will and most people would find this a difficult and frustrating process.

Now that you know how to probate a will and all that goes into the process, you may want to consider avoiding it by using a Living Trust instead of the Will as your estate planning document. I suggest you research living trusts on the internet to learn the pros and cons.

To assist you we offer an internet e-course on our website that teaches you all you need to know about the living trust.

Robert Olson is the lead attorney at DIY Lawyer. A website dedicated to helping people do their own legal work including drafting a Living Trust. They offer an e-book with a money back guarantee titled the Living Trust Annotated. This book teaches you to draft your own Living Trust for a fraction of what you would pay an attorney. With the purchase of the e-book you also receive a free half hour phone consultation with a DIY Lawyer to answer your questions about the book. You can read about it at the DIY Lawyer website. You can also sign up for their Free Living Trust E-Course.

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