Probate and Estate Administration
In its narrowest sense, probate refers to the determination that your will represents your final testamentary intentions. In its broader sense, probate is the process of putting the terms of your will into effect, including the gathering of all of your assets and the payment of any outstanding debts and taxes, the payment of the expenses associated with the administration of your estate, and the distribution of bequests to your heirs. The executor you named in your will has the responsibility to manage this process. The executor is entitled to a reasonable fee for performing these services.
In a formal probate, the executor's actions are conducted under the oversight of a probate court. In an informal probate, the court may do little more than sign a final order approving the distribution of assets and closing the estate.
There is a popular perception that probate is something to be avoided, and living trusts are often sold with the notion that they will help people avoid probate. As probate laws vary between jurisdictions, the effect of the probate process on your estate will vary depending upon where you live. However most jurisdictions have updated their probate laws and processes to reduce the length and cost of the process, and a will that is properly drafted and executed can remove many of the burdens of that process. Also, avoiding probate will not eliminate some of the more complex or time-consuming aspects of administering an estate, including the preparation and filing of final tax returns. As the cost of probate can vary significantly between jurisdictions, this is something you should discuss with an estate planning professional.
While challenges to wills ("will contests") are rare, they can happen. Some jurisdictions permit an estate plan to include a "no contest" clause, whereby if somebody unsuccessfully challenges a will that person will be excluded as an heir.
Also, while it is typically permissible to disinherit certain people, such as one of your children, a court may modify your will if it appears you accidentally omitted mention of a person to whom you otherwise would have left money, such as a child who was born after you drafted your will (a "pretermitted heir"). Thus, if you do intend to disinherit an heir, you should expressly state that intention in your will.
Most jurisdictions have provisions to protect a spouse, which provide that they can choose between the bequest you have made and a share of your estate as defined by statute. If they determine that their statutory share is larger than the bequest, they may "opt against the will" to take the larger share. Thus, if you intend to give your surviving spouse less than approximately half of your estate, you should consult with an estate planning professional to see if that is permitted in your jurisdiction.
Recall also that the probate process is a public process. It is possible for somebody to examine the court records to determine what assets you had and how they were distributed. If this concerns you, you should consider setting up a trust or implementing other estate planning measures that won't end up as part of a public court file.
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