What is Probate?

Probate is transferring property after a person’s death.  Before passing away, most people write down their intentions as to how property will be distributed and how certain debts will be paid once they pass away.

Administration of Probate

Probate is a process of the administering an individual’s final affairs and is designed to manage the transferring of the deceased property.  This process is supervised by the court.  Typical property that may be subject the probate process is property owned by an individual at the time of their death, in where the property does not pass to another by ownership or designation (such as an insurance policy or bank accounts which are “payable on death”).

The phrase “probating a will” refers to the process in which an individual can prove to the court that the deceased drafted a will and followed all necessary legal procedures in doing so.  Many seek to avoid the probate process, mainly in order to avoid paying probate fees.   Nonetheless, avoiding the probate process altogether is possible.

There are three key ways in which one can avoid the probate process and its protections:  by having joint ownership with the right of gifts, survivorship, and revocable trusts.  However, the probate process exists to protect all parties involved.

What Occurs in Probate?

The process of probate may be uncontested or contested.  Generally, most issues that are contested arise during the process because of a dissatisfied heir is asking for a share of the decedent’s property that is larger than what he or she is actually receiving.

Arguments that can arise during the probate process are:  the deceased did not have sufficient mental capacity to know what they were doing at the time the will was executed and did not follow proper and necessary legal formalities in the drafting of the will, or the deceased was possibly improperly influenced in making gifts before their death.  However, most of estates that go through the probate process are not contested.

The basics of probating an estate includes:

 - Collecting all probate property belonging to the decedent

 - Paying all claims, debts, and taxes that are owed by the estate

 - Collecting all rights to dividends, dividends, etc.

 - Settling any disputes involving the estate

 - Distribute or transfer any remaining property to the heirs of the decedent

Typically, the decedent will name a person to be executor, who will take over the management of his or her affairs upon death.  If an executor is not named, the court will appoint a personal representative, or administrator, to settle the estate.  This administrator will then fulfill many of the duties listed above.

Usually, a person may leave property to any person they wish and may make such distinctions in their will.  But, depending the laws of the state and the relationship one has to the decedent, the court may have to override the decedent’s wishes.  For instance, in many states a spouse is entitled to a certain amount of the property, or a creditor may have a claim on the estate.  Individual jurisdictions will normally prescribe the length of time that an estate must remain open to allow creditors a sufficient amount of time to present any claims to the estate.  For particularly complex and large estates, this process may last for a longer period of time.

Contact the attorneys at The Lloyd Law Firm, LLC today to discuss any will and probate-related questions you may have.