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What is Probate?

In the United States, probate is generally referred to as the legal process used to administer the estate of the Deceased. The probate process involves:

  1. An accounting of the Deceased’s assets.
  2. Distribution to heirs, creditors, beneficiaries and anyone else entitled to payment from the estate.

Contrary to popular belief, having a will does not excuse an estate from going through probate, nor does not having a will ensure probate is necessary.

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The Probate Process

The probate process in the United States can be complicated and hard to understand, especially because it varies by county and state. For example, while each state’s probate code will describe their basic probate law, the cases themselves are administered by the county courts and county processes may differ in fees and procedure. Overall, the best way to find out about the probate process in your location is to call your county or state courthouse or contact an attorney.

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How Do I Know If I Need to Probate the Estate?

Whether or not the probate process is necessary depends upon the value of the Deceased’s estate. Each state in the United States has a threshold set in their probate laws; estates that exceed the threshold value need to go through probate. For example, in Illinois, estates under $100,000 can proceed through small estate procedures, while in North Carolina, the threshold is only $10,000. Again, check your state and county laws for variances.

The Uniform Probate Code
While the majority of probate laws are dictated on a state-by-state basis, there has been some attempt at uniformity through the Uniform Probate Code. The Uniform Probate Code was intended to help organize and clarify the probate process. As always, check with your state courthouse or an attorney to ensure you’re following the correct procedure.

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What Could Make an Estate Exempt From Probate?

  • Contrary to popular belief, if the Deceased had a will, that does NOT mean their estate is exempt from probate.
  • Trusts may be exempt from probate. If the Deceased placed most of their assets in a trust, the estate may not need to be probated.
  • Properties that are owned jointly and have rights to survivorship may be exempt. Assets that pass automatically to another person upon death are also usually exempt.
  • There are also miscellaneous assets that may be exempt from probate. In this case, it’s best to consult an attorney to determine if there are any assets that qualify. (Please note: Even if the estate contains assets that do not need to be probated, they are still considered part of the estate and need to be listed when assets are tabulated.)

To determine if the estate needs to be probated or can follow another procedure, follow the steps outlined in the Steps in the Process section.

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