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Probate FAQ

What is probate?  

Answer:   Probate is the process of filing a person’s Last Will and Testament with a court to have the Will authenticated and approved. 

Is court approval of a Will necessary?  

Answer:  Yes, without a court order approving the Will, it is of no force and effect. An unfiled, unapproved Will is like no Will at all.

Why is it important to have a Will?  

Answer:  Without a Will, a person’s property is inherited in a manner which is probably unknown to most people and likely inconsistent with many people’s wishes. Further, a court proceeding to determine who inherits a person’s property is much more complicated and expensive.

Can I avoid probate with a Trust? 

Answer:  Sometimes a Trust can avoid probate of a Will, but not always. Further, there may be adverse income tax consequences to putting real property into a trust, which are avoided by passing property under a Will. While some people may benefit from establishing a trust, they are not for most people. Also, setting up a trust is frequently more expensive than probating a Will, and not guaranteed to avoid the need for probate.

Is Probating a Will Expensive?

Answer:  Generally not. It depends on the size and complexity of the estate. However, there can be valuable benefits which can be gained passing property under a will.

Who handles the probate of a will?

Answer:  A properly prepared will names a person or persons to be the Executor (if a man) or Executrix (if a woman) to be the representative of the Estate.  The Executor is the person who generally submits the will to probate and handles the minor legal work necessary to prove the validity of the will and have it approved by the court.

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