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Dr. David Edward Marcinko MBA MEd

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Purpose, Process and Practical Realities

Probate is one of those legal terms that most people have heard but few truly understand until they are forced to confront it. At its core, probate is the court‑supervised process of settling a deceased person’s estate. It ensures that debts are paid, assets are distributed, and the decedent’s wishes—if expressed in a valid will—are carried out. Although probate can feel intimidating or bureaucratic, it plays a crucial role in maintaining order, fairness, and clarity during a time that is often emotionally difficult for families.

The probate process begins when someone dies owning property in their name alone. If the person left a will, the document must be submitted to the appropriate court so that it can be validated. This step confirms that the will meets legal requirements and reflects the decedent’s true intentions. If there is no will, the estate is considered “intestate,” and state law determines who inherits the property. In either case, the court appoints someone—called an executor when named in a will or an administrator when appointed by the court—to manage the estate.

One of the executor’s first responsibilities is to identify and secure the decedent’s assets. This can include everything from bank accounts and real estate to personal belongings and digital property. The executor must also notify creditors, pay outstanding debts, and handle tax obligations. These tasks require careful record‑keeping and transparency, because the executor is acting as a fiduciary, meaning they must put the estate’s interests above their own. This fiduciary duty is one of the reasons probate exists: it provides oversight and accountability at a time when emotions and financial stakes can run high.

Probate also serves to protect the rights of heirs and beneficiaries. When a will is submitted to the court, interested parties have the opportunity to contest it if they believe it is invalid or the product of undue influence. While will contests are relatively rare, the probate system provides a structured way to resolve disputes. Without such a process, disagreements among family members could escalate into prolonged and costly conflicts. Probate offers a forum where questions can be answered, evidence can be evaluated, and decisions can be made impartially.

Despite its benefits, probate is often criticized for being slow, expensive, and public. The timeline varies widely depending on the complexity of the estate, but even simple cases can take months to complete. Larger or more complicated estates may take years. Court fees, attorney fees, and administrative costs can reduce the value of the estate before assets reach the beneficiaries. Additionally, because probate filings are generally public records, anyone can access information about the estate’s assets and distributions. For families who value privacy, this openness can feel intrusive.

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These drawbacks have led many people to explore ways to avoid probate altogether. Strategies such as creating a living trust, designating beneficiaries on financial accounts, or holding property jointly with rights of survivorship can allow assets to pass directly to heirs without court involvement. While these tools can be effective, they require careful planning and ongoing maintenance. Avoiding probate is not always the best or simplest option, especially for individuals with complex financial situations or blended families. Probate, for all its imperfections, provides structure and legal certainty that can be reassuring.

Another important aspect of probate is its role in preventing fraud. When someone dies, there is potential for confusion or manipulation, especially if the person had significant assets or complicated relationships. Probate requires documentation, verification, and court approval at each step. This oversight helps ensure that assets are not misappropriated and that the decedent’s intentions are honored. It also protects vulnerable beneficiaries, such as minors or individuals with disabilities, by ensuring that their inheritances are managed responsibly.

Probate can also serve as a moment of clarity for families. The process forces a thorough accounting of the decedent’s financial life, which can reveal forgotten assets, unresolved debts, or important documents. While this can be emotionally challenging, it can also bring closure. By the end of probate, the estate is settled, disputes are resolved, and beneficiaries can move forward with certainty.

In many ways, probate reflects the intersection of law, family, and legacy. It is not merely a legal procedure but a societal mechanism for honoring the past and protecting the future. While it may seem cumbersome, it exists to ensure fairness, transparency, and order at a time when those qualities are most needed. Understanding probate—its purpose, its steps, and its limitations—empowers individuals to make informed decisions about their own estate planning and helps families navigate the process with greater confidence.

Probate may never be a process people look forward to, but with knowledge and preparation, it becomes far less daunting. It is, ultimately, a safeguard: a way to ensure that a person’s final affairs are handled with care, integrity, and respect.

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EDUCATION: Books

SPEAKING: Dr. Marcinko will be speaking and lecturing, signing and opining, teaching and preaching, storming and performing at many locations throughout the USA this year! His tour of witty and serious pontifications may be scheduled on a planned or ad-hoc basis; for public or private meetings and gatherings; formally, informally, or over lunch or dinner. All medical societies, financial advisory firms or Broker-Dealers are encouraged to submit an RFP for speaking engagements: CONTACT: Ann Miller RN MHA at MarcinkoAdvisors@outlook.com -OR- http://www.MarcinkoAssociates.com

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Filed under: "Ask-an-Advisor", Estate Planning, Glossary Terms, Marcinko Associates | Tagged: david marcinko, probate |