Probate is the process by which a deceased person's assets are screened by the court for distribution to the rightful heirs. In some cases, probating an estate is not required, but often it is. The decision on whether an estate will be processed by the courts is entirely up to the legal system. Neither surviving heirs nor estate attorneys can determine that unilaterally. If your estate ends up in the court system, expect to pay as much as 5 percent in attorney costs and mandatory fees before it's all said and done.
Some states' laws have set a dollar limit above which an estate must be probated. For example, in California an estate that carries a sum value of more than $100,000 will go through probate court regardless of whether a will exists. Each state has set its own limits, many of which are even lower. Only the smallest estates escape the probate process. In most cases, owning a single piece of property in California would trigger the court review process.
The ultimate purpose of probate is to ascertain the appropriate distribution of the deceased assets. You might think that presence of a signed and notarized will would make the process straightforward and probate unnecessary, but various creditors and heirs often appear and lay claim to part of the estate. It is the court's job to sort everything out according to the intentions of the dead and the laws of the state.
In a perfect world, an estate has a valid will that names an executor or trustee to work with the court to ensure probate goes as smoothly and quickly as possible. At the very least, the court will verify the will and the intention of the deceased to have the trustee carry out disposition of assets. If there is no will, the estate will be probated among heirs according to state law. Any estate valued in excess of the state minimum and not eligible to bypass probate begins with a probate petition filed in the decedent's county of residence.
If you want to create a legal situation where your estate does not go through probate court, there are a few options. You could create a living trust or hold all your property of value in joint tenancy title, so that ownership automatically passes on to the surviving spouse. In the case of a trust, the death of a property holder automatically transfers ownership to a designated trustee. As such, the trustee distributes the assets as he sees fit, hopefully in accordance with the wishes of the deceased. The bottom line is that small, simple estates can often be resolved without probate, but when a large sum of money or assets is at stake or a complication arises, the court will likely decide to involve itself.
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