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What is probate and how can I avoid it?

When someone loses a spouse, parent or sibling, the process of dealing with the person's death is usually hard enough. However, when the survivors must also deal with the probate process afterward, they are often left even more drained and overwhelmed. Few may understand probate, and that lack of understanding leaves them even more at odds with how to deal with it when the time comes.

Simply put, probate is the process a court uses to wrap up all of your legal and financial affairs after you die. During the process, the court essentially distributes the assets of your estate and compensates those with any outstanding debts against you. Most people think that all they need is a will to inform the courts how their assets should be divided. However, sometimes wills cannot be found after a person's passing or they can be contested by a disgruntled family member or other party. If a person has no will to begin with, then the courts will decide how to distribute the decedent's estate.

The probate process can be complex and time-consuming. Any outstanding account balances, such as a mortgage or medical bills, will still need to be paid during the settlement, which can take months or years. Furthermore, those awaiting their inheritance will not receive all of their fair share until the process has been completed. Sometimes, those individuals will end up with nothing because the funds were depleted to pay for expenses incurred during the process. The American Bar Association reports that 6-10 percent of a person's estate can be consumed by the administrative fees and other costs associated with the process.

Adding to the problems of time, cost and others contesting a will's terms, all probate proceedings are available to the public as a matter of record. Anyone can delve into your personal matters, which can lead to even more issues. Furthermore, the fate of any pets you leave behind can also be open to dispute.

However, in certain circumstances, the probate process can be avoided. Certain assets, particularly retirement accounts and assets that are joint-owned, may be excluded from probate. Trusts are another estate planning instrument that can avoid the process altogether. For more information on the probate process and the options you have available to avoid it, you can consult with an attorney experienced in estate planning.

Source:, "What Is Probate -- Definition, Process & How to Avoid It," Kiara Ashanti, 2015

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