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Some Frequently Asked Questions about Probate

What is probate?
Does all of the decedent’s property pass through probate?
Do I need a probate lawyer?
 

What is probate?

While you are alive and well, you have authority to control your property and financial affairs. When you pass away, someone else needs to be given authority to control, manage and distribute your property. Probate is the legal process where authority over your property is passed to someone else under court supervision and control. The person who is given control is called the executor or personal representative. Usually the executor is named in your will. After the court determines that your will is valid, the personal representative is responsible for taking control of your assets, managing the assets during probate, notifying and paying any creditors, filing income and estate tax returns, and distributing your property as directed by the will or ordered by the court. In Alaska, even in a simple and straightforward case, the probate process usually lasts about a year. If you own real estate in more than one state, your loved ones will have to go through a probate process in a different court in each state where you own real estate.

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Does all of the decedent’s property pass through probate?

Not all property and assets of the decedent will pass through the probate court. The probate process only controls property titled solely in the name of the decedent at the time of death. Life insurance, annuities, retirement accounts, jointly titled property and property held in trust will not pass through probate. Consequently these types of assets are not controlled by a person’s will. This can be a good or bad thing depending upon whether the non-probate property is going to the same people named in the will.

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Do I need a probate lawyer?

If you are named as the executor or personal representative in a will of a person who passed away, or if you are the closest kin to a person who had died without a will, we highly recommend that you talk to a probate lawyer. The probate process and all of the related legal issues does not work well for “do it yourself” legal representation. Mistakes often cost far more than the expense of a probate attorney.

If you are a beneficiary of a will, but have not been named as the personal representative or executor of the decedent’s estate, you will only need an attorney if there is a conflict over the terms of the will or if the personal representative is acting unfairly or not doing his or her job. It certainly doesn’t cost anything to call a probate attorney and ask if you need legal representation.

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Foley, Foley & Pearson, P.C. is a full service Estate Planning law firm. We offer our clients services in Probate Administration, Estate Taxes, Wills, Trusts, Disability and Incapacity Planning, Estate Administration, Corporate and Business Law, Business Succession Planning, and Planned Giving and Charitable Bequests.