I know this isn’t anyone’s favorite topic but there just isn’t any way around it. We all have to deal with it at some point in our lives. You can expect probate to take anywhere from 3 months to several years. According to the article at http://library.findlaw.com/2000/Aug/1/127980.html the average around the country is 13 months. If the only person involved is a surviving spouse, probate can be avoided but you may not want to do that if any of your property was held in your spouse’s name, either individually or jointly. Going through probate will allow the transfer of those assets into the surviving spouse’s name. The other way to manage those assets is through a living trust.

In a living trust assets are held in the name of the trust so no probate is necessary. If the reason for setting up a living trust is avoiding probate, make sure all of your assets are held by the trust or it will have missed its purpose. If you do go through probate, the probate service gives the executor a grant of representation which can come in several forms depending upon whether the estate has an administrator or executor. The document issued will allow that person to conduct the affairs of the deceased by proving their legal authority to do so to banks etc.

Usually, a will automatically causes an estate to go into probate. You can expect probate to cost up to 10% of the value of the estate. That is one of the reasons, people with larger estates are motivated to avoid probate. Avoiding probate will not avoid inheritance tax, however. Dying in 2010 in the United States will though. Due to a law passed in 2001 under President George Bush, the inheritance tax is abolished for people that die in 2010. It will return in 2011. It has been reported that people on artificial life support in 2009 were kept alive long enough to live into 2010 so their heirs could benefit from this rare event.

Inheritance tax is also known as death tax or estate tax. The limits below which you did not have to pay estate tax had risen to $3.5 million in 2009 but will reset to $1 million in 2011. The level of the estate tax will also return to 55%. You can see why it is so attractive for the millionaires and billionaires in the United States to die in 2010 or, if they happen to have scheming relatives, why they should be extra cautious this year if they aren’t ready to pass it on. Imagine the incentive provided here for the disgruntled children of a wealthy grinch. People have been killed before by their own relatives so the relatives could enjoy their riches sooner. Having just a one year window to benefit from this tax freedom makes me grateful I do not have scheming relatives or a large estate.

I would like to think my next of kin love me and would not wish me any harm. If you die without a will the state decides who inherits your estate. In most cases the estate will be divided between your spouse and your children. Check your state of residence to confirm the laws applicable to you. If you should die without any next of kin, generally the state will inherit your assets unless you have a will. In most states next of kin are considered in the following order: spouse, children, grandchildren of dead children, parents, siblings.

As with most legal and financial considerations, everyone’s case is slightly different. The cost and length of probate depends in large part on the size of your estate, the size of your family and the thoroughness with which you prepared for the event.