The Basics of Probate: Do You Need It?

When it comes to estate planning, a lot of people tend to avoid the word “probate.” After all, many people want to focus on grieving the passing of their loved one without bringing up the topic of money. Sadly, managing the estate of a person after they’ve passed is a necessary process and one that should be dealt with by professionals.

So it might seem in poor taste, but it is best to get a legal representative to handle your deceased loved one’s estate. But, of course, get local representation. A probate attorney in Utah will advise you on Utah laws, while a probate lawyer in California will follow California laws.

What Is Probate?

Many people avoid probate because it is costly and it takes time. In many states, the family of the deceased has to wait a month and up to three months before a probate court makes a decision, and that’s if no one contests the will.

But what exactly is probate? Well, probate refers to the legal process of transferring the estate of a deceased person to the rightful heirs, including both assets and debt. It’s also used interchangeably with the court that handles such a process, and the distribution of assets itself.

justice statue holding scales

What Happens During Probate?

During probate, the court decides on several factors that govern the distribution and transfer of a deceased person’s asset. One of the first things they do is to check whether the dead has a will and if it is valid (more on this later).

Once this is determined, the court then works with the client to find an executor, who will then help handle the legal aspects of probate. The executor helps both the court and the family of the deceased in determining the exact assets of the estate to decide how much estate tax (if applicable) the family needs to pay.

Once the estate has been assessed, its real value has been determined, and applicable taxes and debts have been paid, the executor can begin distributing the remaining assets to the rightful heirs following a valid will.

The Importance of a Valid Will

A will is a document that outlines exactly how an individual wants their assets distributed once the individual dies. Usually, courts will honor an individual’s last wishes and divide up their assets according to what’s written in the will. But, of course, certain rules govern whether or not a will is valid.

First, a will must be created and signed under your state’s specific laws. In Utah, for example, a will can only be recognized by the court if it was signed in the presence of at least two witnesses and if they sign the document within a specific amount of time.

Next, the individual creating the will must have ‘testamentary capacity’; that is, the person creating the will must be of sound mind during the creation of the document, and that they understand the value of their assets and the people they are leaving it to.

Finally, the court must also determine whether the will was created either under duress or if it was procured through fraud. Wills that were created when a person was mentally weak can be suspect to undue influence, wherein an outside person has convinced the individual to sign over their assets.

If you want to avoid having your will challenged and voided by courts, you must follow your probate lawyer’s advice and have your will signed in complete accordance with all state and federal laws.

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