Probate Laws

Written by Jared Vincenti
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Probate is the process by which a deceased person's estate is divided among his heirs. There are specific legal guidelines in place to ensure the fair distribution of assets between the heirs. In addition, these laws are in place to make sure that the state is not cheated of estate taxes, since there are taxes on all transfers of property.

Many people try to avoid probate by establishing living trusts. Under this loophole, a person can place all of his belongings into the possession of a corporation controlled by him. Upon his death, the controlling interest of the trust passes on to a specified heir. However, this system makes it difficult to enforce the fair distribution of assets, and does not save very much in the long run.

Probate with a Will

A will is a document in which a person specifies his wishes for the distribution of his goods upon his death. These must follow all probate laws, but allow for specific instructions to be left. Among the things that can be specified in a will are which goods should go to which heir, as well as in what order assets should be sold to pay debts and taxes.

The main advantage of having a will is that your estate avoids probate court fees, because it can be settled simply by your executor. The executor is the person who is named by the will as the party responsible for administering your wishes. Provided there are no challenges to your will, all parties simply receive their share of inheritance with minimal fuss.

However, even a will can be challenged. If a person feels that they have a legitimate claim on the inheritance that is overlooked in the will, they can challenge the will. This is rarely successful, though, and even an outdated will usually stands up in court. Thus, you should re-write your will every few years to make sure nobody is left out.

Probate without a Will

If you die without a will, the state appoints an executor to your estate. Following state laws that govern the sale of estate property, the executor will sell items until all debts and taxes are paid. The order of priority in these sales varies from state to state, but can be circumvented with a will.

Then, heirs are free to challenge the judgment if they feel that they have not received a fair share of the inheritance. In addition, non-family members can challenge the judgment--but often far less successfully than any family member. However, once a challenge has been entered, the court must then distribute everything, item by item.

If you die without a will, anyone who is not considered a legal heir has virtually zero chance of getting anything from your estate. The heirs are able to include other parties in the division of the property, but are also free to exclude them. This is usually only a problem with romantic partners to whom the deceased is not married. All of these woes can be avoided by having a will, though, and the cost of a will is minimal compared to court costs and legal fees associated with a disputed estate.

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