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When a person dies, everything stops in connection with his or her affairs, and someone must step in and take charge of things until the estate is settled and the property transferred to its new owners. If a probate court proceeding is required, this process can take many months.

1. What is probate?

Probate is a legal process that includes:

For the most part, probate involves paperwork and court appearances by lawyers, who are paid from estate property that would otherwise be available to the people named in the will (beneficiaries). The probate process typically drags on for well over a year. Property left by the will cannot be distributed to beneficiaries until the process is complete.

Probate rarely benefits your beneficiaries, and it certainly costs them money and time. Probate makes sense only if your estate will have very complicated problems, such as many debts that can't easily be paid from the property you leave.

2. Who is responsible for handling probate?

In most circumstances, the executor named in the will takes this job. If there wasn't any will, the probate court will name someone to handle probate - most often the closest capable relative, or the person who will inherit the bulk of the deceased person's estate.

Sometimes, no formal probate proceeding is necessary. This may happen if an estate is very small, has been planned using probate avoidance devices such as joint tenancy or a living trust, or because the estate goes mostly to the surviving spouse. In these circumstances, no administrator is formally appointed. Instead, a close relative, often the person who inherits the bulk of the estate, serves as an informal estate representative. Normally, families and friends decide this among themselves, and it is not uncommon for several people to share the responsibility.

3. Is it difficult to serve as estate representative?

Serving as an estate representative can be a tedious job, but it doesn't require special financial or legal knowledge. Common sense, conscientiousness and honesty are the main requirements. If an executor needs help, he or she will be able to hire lawyers, accountants or other experts, and pay them from the assets of the deceased person's estate.

Essentially, the estate representative's job is to protect the deceased person's property until all debts and taxes have been paid, and see that what's left is transferred to the people who are entitled to it. The law does not require an executor to be an expert or to display more than reasonable prudence and judgment, but it does require the highest degree of honesty, impartiality and diligence. This is called a "fiduciary duty"--the duty to act with scrupulous good faith and candor.

4. Does the person named in a will as executor have to serve?

No. When it comes time, an executor can choose whether or not to accept this responsibility. And even if the deceased person's choice does agree to serve, he or she can resign at any time. If an executor decides not to serve or resigns, an alternate named in the will takes over. If no one is available, the court will appoint someone else to step in.

5. What exactly does the executor do?

The executor usually must:

6. Does the executor get paid?

Obviously, the main reason for serving as a personal representative is to honor the deceased person's request. But the executor is also entitled to payment. The exact amount is regulated by state law and is affected by factors such as the value of the deceased person's property and what the probate court decides is reasonable under the circumstances. Commonly, close relatives (especially those who will inherit a substantial amount under the will) and close friends don't charge the estate for their services.

7. Is a lawyer necessary?

Not always. An executor should definitely consider handling the paperwork without a lawyer if he or she is the main beneficiary, the deceased person's property consists of common kinds of assets (house, bank accounts, insurance), the will seems straightforward, and there are good self-help materials at hand. Essentially, shepherding a case through probate court requires shuffling a lot of papers. A personal representative probably won't ever see the inside of a courtroom; instead, he or she will deal with the court clerk's office. In the vast majority of cases, there are no disputes that require a decision by a judge. The executor may even be able to do everything by mail. Doing a good job requires persistence and attention to tedious detail, but not necessarily a law degree.

But if the estate has many types of property, significant tax liability or potential disputes among inheritors, an executor may want some help.

There are basically two ways for an executor to get help from a lawyer:

8. If an executor doesn't want to hire a lawyer, is there any other way to get help?

Lawyers aren't the only place to get information and assistance. Here are some others:

9. Wouldn't it be better to try to avoid probate altogether?

Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health and the size of your estate. If you're young and in good health, a simple will may be all you need - adopting a complex probate avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate. Your property may even fall under your state's probate exemption (most states have laws that allow a certain amount of property to pass free of probate, or through a simplified probate procedure).

But if you're older (say, over 50), in ill health or own a significant amount of property, you'll probably want to do some planning to avoid probate.

10. What is the best way to avoid probate?

There's no one answer for all people; it depends on your personal and financial situation. The most common probate avoidance methods are:

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