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Should You Avoid Probate?

It is advisable to prepare a will so that the administration of your estate upon your death goes smoothly for family members and beneficiaries. A will is a legal document that specifies how the deceased’s assets are distributed after he or she dies. An executor is appointed by the deceased to help carry out his or her wishes.

Once a person dies, the will goes to probate. Probate is the court’s method for validating a will. The process includes identifying the deceased’s assets, having the assets appraised, paying off any debts and distributing inheritance to the heirs.

Not all estates have to go through probate. For example, in California, $100,000 of property can pass from one person to another without probate.

The person responsible for handling probate is usually the executor. If the deceased had not appointed an executor, the court may assign a family member or a personal representative to assume the role.

If an estate is not complicated and does not have much debt, the estate can usually avoid probate. However, if there is a lot of debt and complicated issues, probate may make sense. The attorney who prepares your will can advise you on how to create a plan to avoid probate, which may change as you age and your life situations alter.

Challenging the Estate During Probate
An heir or someone who would normally be an heir can challenge a will during the probate process. Reasons for challenging a will could be:

  • Fraud
  • Undue influence
  • Duress
  • Coercion
  • Insanity

Taking a page from the rich and famous as an example of fraud, undue influence, duress and coercion, Brooke Astor’s socialite son, Anthony D. Marshall, decided to challenge her will before probate and even before his mother’s death. The New York Times reported that Marshall was recently sentenced to jail for coercing his mother into signing codicils to her will assigning a major portion of her fortune to him.

If you have a substantial estate, preparing a well-thought out will eases the burden of your estate distribution upon your death. Your wishes are set forth in a legal document, which lets the probate court oversee the process as the executor carries out your wishes. If you have a small estate, probate court can be avoided as long as your heirs and beneficiaries agree on the estate distribution.

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