What Is Probate, How Does It Work, And Is It Possible to Avoid?

Technically, when a person dies and leaves a will, probate is the term used for when the will is read, accepted by the court, and then executed according to the law. Of course, each step of the way there are hurdles to cross, sometimes easy ones and sometimes hard, depending on how prepared the deceased was before they died. If someone dies without a will, things can get a little more complicated, and the law in the jurisdiction will have to take over and dictate how things will proceed. There are ways to limit how much of an estate will fall under the probate, and a good lawyer is needed to advise on those details. To find a lawyer to handle this for you in Vegas, you can search probate attorney Las Vegas, or just estate lawyer and find someone who can help. Here are some of the reasons why estates go into probate, what happens in probate, and how you may be able to avoid probate.

Here Are Just Some of The Reasons for Probate


The first thing that actually needs to happen is for the death certificate and last will and testament need to be verified in front of the court. If the will is proven to be the last will and testament of the deceased at the time of death, then the probate will move on to the next step of administration of the estate.

After the probate court has ruled that the will is legitimately the final testament of the deceased, a number of things kick into motion. There needs to be an accounting of all property belonging to the deceased, including life insurance policies, bank accounts, real property, personal property, business property and investments.

There also will have to be a complete accounting of debts owed by the deceased as well. Some of these are easy if they are regular debts to banks, credit cards, mortgage companies and finance companies. But, there is also the possibility that the deceased has other outstanding debts elsewhere, so ads in designated newspapers are taken out as legal notice to any outstanding creditors where they need to file their claim for monies owed.

There is a time limit on making a claim, under the law, and failure to act will result in forfeiture or loss of the ability to file a claim. These time constraints are also what makes probate take so long as well since none of the assets can be disbursed until the time limits for claims has passed and the debtors paid.

The Executor of The Will Isn’t Necessarily A Beneficiary

There is a common misconception that the executor of the will is able to take money from the estate for whatever purpose and spend it however they want and continue unabated. The executor is under strict legal constraints to keep costs of settling the estate under control and shouldn’t have open access to the accounts for frivolous expenditures. All costs will have to be approved in the end by the probate judge and they are usually strict about wasting money owed to the heirs.

The executor is appointed by the will, and is usually an heir, but not always. It may actually be an attorney instead, a close friend, or anyone else the recent deceased had decided to appoint. The executor will have the legal power of attorney to sign checks, close bank accounts, deal with Social Security, make funeral arrangements, pay off creditors, sell assets that weren’t specifically allocated in the will, and many other things.

How Long Does A Probate Take?

This is a very hard question to answer because of the complexity of many estates. There is definitely a minimum amount of time, however. Since many of the tasks, like running ads for creditors, have specified lengths of time that need to be met, those will delay any settlements for at least that much time on their own.

In addition to that, some courts are backed up for weeks or months and hearings have to be scheduled at their convenience, not the estate’s or their attorney’s. Any real estate that needs to be sold will have a separate time table dictated by the markets. If there is sufficient money in the estate to pay all creditors and debts it is possible to meet all the requirements and settle the estate prior to selling the real estate. Otherwise, everything may be put on hold until the property is sold.

Is It Possible to Avoid Probate?

Yes, but it is very difficult and must be handled by an attorney. In most states in the US, probate is required on any estate that is valued more than a certain amount of money. The threshold is usually very low, and if there is real estate involved, easily surpassed.

If there are business assets, real estate assets, the will is contested, there is no will, large gifts were given, or any one of a number of factors, probate will be required. A good attorney can, however, arrange for a person to basically give everything away before death and avoid probate. This is usually done with trusts, but there are other ways as well. This is difficult to do legally and must be handled professionally or the courts will take action after death. People wishing to go this route should contact a competent legal professional that specializes in that type of law.