Streamlining Probate Law - Execute the Executor and Avoid Probate Completely

By: Andrew Stratton
Probate law primarily concerns the execution, interpretation, and contest of legal wills and estates. A probate court may be known by various names depending on where it is, however, probate law always concerns how a deceased person's estate is handled by his executor or heirs. The word probate describes the process through which a person's final wishes are carried out with regard to who should administer the process, how assets will be sold and divided, and what will happen to any existing estate. The estate is the term used to refer to the legal entity that is comprised of a decedent's assets after they themselves have died. An estate may own property, profit, pay taxes, be sued, and owe debts.

A will is a legal document that exists under civil law. It is considered to be the last, definitive, and dying wish made by a person before their death, and for a will that has been ratified by a court, the legally appointed administrator of this process - the executor - usually either a legal professional or a competent friend or colleague of the deceased, has an obligation to ensure that the decedent's last wishes are carried out to the extent that is practical, legal, and affordable. Under probate law, the executor is entitled to charge the estate a reasonable fee for their services.

A will may include simple instructions for dividing the property of an estate between the children of the deceased, or it may include detailed instructions for using the estate to establish a scholarship committee, or trust. Despite the finality of a will, it is possible to legally contest even a will that has been ratified by a court. If an executor is suspected of mishandling the affairs of an estate, beneficiaries are permitted to request that court ask the executor to account for their actions while administering the will.

When a person who has left a will dies, a named executor is responsible for administering the will. They are under no obligation to agree to this, as it is a time-consuming process that an administrator accepts a considerable deal of personal liability for managing. If the named executor refuses (or one is not named), the duty falls to the most senior beneficiary of the will. Except in emergencies, it usually takes longer than a month to appoint an executor.

All recipients in the will, and all people who would legally be recipients if no will were left must be informed of the death by post, giving them the opportunity to prepare a challenge to the will or appointment of an administrator or executor. Before any division of assets can occur, the deceased's estate must pay all outstanding taxes that were owed at death, or have been incurred by the estate itself. Finally, during probate, all creditors are given an opportunity to come forward in order to be compensated by the estate for any outstanding debts that the deceased carried at debt.

Probate is invariably a costly process, and usually far more time consuming than most people care to tolerate, so methods to avoid probate completely are being increasingly utilized. Some jurisdictions include procedures for streamlining or avoiding the probate process completely to reduce loads on courts and cost to beneficiaries. For example, in the state of California, probate law includes a provision for people whose assets were worth less than $100,000 at the time of their death by which probate can be avoided outright. Similarly, assets conferred to a living trust or jointly held by another person under joint tenancy laws (for instance, a surviving spouse) need not be subject to the probate process.

Probate law is an expensive, drawn out process that often takes up to a year to fully complete. The processes by which a decedent's assets are divided according to their last will and wishes can be quite complicated, and in many cases, vehemently contested. For this reason, anyone with doubts or questions about this area of law would be well advised to book an initial consultation with a firm that specializes in probate law.

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