Probate is the court-supervised process of proving the validity of a Will. When someone dies and leaves behind a Will, the court must determine if the Will is valid. Once it is verified, the desires and the instructions of the deceased may be carried out by an appointed Personal Representative. This usually involves distributing the deceased’s property to the people specified to inherit it in the Will.
COMMON PROBATE TERMS
Decedent: the person who passed away
Testate Estate: the decedent left behind a valid Will
Intestate Estate: the decedent did not leave behind a valid Will, or any Will at all
Personal Representative: also known as Executor, or Administrator, this person is appointed either in the valid Will, or by the court if there was no Will, to administer the decedent’s estate/
PROBATE IS ADMINISTERING AN ESTATE
Administering an Estate often involves changing the titles on the assets owned by the deceased, or liquidating the assets and distributing the funds to certain people. It also requires the Personal Representative to use the Estate’s funds to pay bills and debts the decedent left behind.
PROBATE’S BASIC STEPS ARE:
- File a Petition with the court and provide Notice to any heirs, beneficiaries, and/or devisees.
- Provide Notice to creditors
- Pay all estate expenses, debts, taxes, etc.
- Remaining Assets are distributed as per the Will, or per state law if there was no Will.
PROBATE CAN BE EXPENSIVE AND TIME CONSUMING
Don’t let the brevity of the above four steps fool you, Probate can be an expensive lengthy process, lasting anywhere from six months to a few years, depending on the complexity of the Estate and the court it is filed in.
PROBATE IS NOT FOR ALL ASSETS.
Not all of a decedent’s property may be subject to Probate. For example, assets that were owned jointly with right of survivorship will pass directly to the surviving owner. Also, assets that have beneficiary designations, like life insurance policies, will pass directly to the beneficiary that the decedent designated. Keep in mind that if the decedent owned property in other states, an entirely new probate proceeding may be required in those other states.
PROBATE IS PUBLIC
Probate is not a private process. The act of filing documents with the court makes the case and all associated filings public record. The thought of “airing dirty laundry” might be daunting to some families, which is why it is good to know that. . .
PROBATE CAN BE AVOIDED!
The most common tool used to avoid Probate is a revocable living trust. A revocable living trust is an entity created during a person’s life time to hold assets, for the purpose of distributing them after their death, no court involvement necessary.
To learn more about the Probate process, or how to avoid it, contact a lawyer today.