Probate is a legal procedure that occurs after a person’s death, when the person’s estate is “settled.” If a last will and testament exists, this is when the court decides whether the will is valid (has been written by someone who was competent, with witnesses, and in the correct language). If valid, the court gives the executor authority to administer the affairs of the estate. If no executor or will exists, the court appoints an estate administrator.

Probate takes a minimum of 7 months to complete. Creditors have 6 months from the notice of a probate to file claims against the estate. All creditors who are owed money are paid by the estate. The court oversees the entire distribution process of an estate, including the transfer of titles and payment of taxes.

If there is no will and your husband or wife petitions the court to be the representative of your estate, he or she is still under the direct supervision of the court for all financial matters. Even decisions that most people want their spouse to make will be overseen if there is no will.

Property that is jointly owned, otherwise directed in living trusts, or life insurance policies with a named beneficiary are not subject to probate proceedings. Such property is already directed to a specific person or persons and is not distributed during probate. Most states allow a certain amount of property to pass without going through probate. For example, in California, property worth $100,000 or less can be passed without going through probate. This is done with a simple procedure of transfer of any property left to a surviving spouse. So check the state laws.

Probate costs depend on the value and complexity of the estate. Fees are approximately 5% of the total, including attorney and executor fees.

Johns Hopkins patient information

Last revised: December 4, 2012
by Amalia K. Gagarina, M.S., R.D.

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