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Probate Court: Understanding due process and Inheritance from Probate Lawyers

Probate court has existed in the United States since 1784, with the first court being established in Massachusetts. Probate court oversees matters governed by equity law such as inheritance, adoption, guardianship, marriage and name changes.

The primary function of probate court is to administer disbursement of estates of deceased individuals. When a person dies without a Will or Revocable Living Trust, everything the individual owned is placed into probate. This includes real estate, checking and savings accounts, IRA's, stocks, bonds, automobiles, personal belongings and anything that has cash value.

In the United States, probate laws are adopted by state government. Therefore, the probate process varies from state to state. When it comes to distributing inheritance property to heirs and beneficiaries, nearly every state requires the decedent's estate to be administered by an appointed Executor or Estate Administrator.

Estate Administrators are oftentimes appointed through the decedent's Last Will and Testament. If the decedent dies intestate (without leaving a Will), the probate court will appoint someone to administer the estate. Typically, a family member is appointed to this position. If the decedent has no living relatives the probate court will appoint an outsider to administer the estate.

The Executor must report to a Probate Judge and provide evidence that everything within the estate has been accounted for and distributed properly. This includes paying creditor debts, documenting inventory of assets and personal belongings, filing of accounting and tax forms, and distribution of assets to heirs and beneficiaries.

The judge reviews the estate to ensure the decedent's wishes have properly been adhered to and creditors and taxes have been paid in full. Once the probate judge approves the estate settlement, inheritance assets can be distributed to heirs.

In cases where the decedent leaves a Will, the probate process generally takes between three and six months to settle. If the decedent dies intestate, probate can take up to three years to settle. Much depends on if heirs agree or disagree to disbursement of assets. If one or more heirs disagree, probate can drag on for extended periods of time.

Having an estate tied up in probate court can be a costly and frustrating experience. The only ironclad way to avoid probate is to file a Revocable Living Trust. A trust allows for total control over assets and enables the Estate Administrator to expedite closing the estate.