Probate

Estate probate is the legal process of settling a dead person's estate: specifically, distributing the decedent's property in estate planning. (see Legal Kits)

In some states, after a person residing in that state has died, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (often called a "probate court") supervises probate, in order to ensure the decedent's property is distributed according to the direction of his will and the laws of the state.

The will usually names an executor, a person tasked with carrying out the instructions laid out in the will. The executor's most common task is the marshalling of the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent's estate can appoint one. Traditionally, the representative of an in testate estate is called an administrator. The representative of a testate estate who is someone other than the executor named in the will is an administrator with the will annexed, or administrator c.t.a. (from the Latin cum testamento annexo).

Steps of probate

Some of the decedent's property may never enter probate because it passes to another person contractually, such as an insurance policy or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account) legally held as "jointly owned with right of survivorship". Property held in a living trust also avoids probate. In these cases, the executor provides documentation to the court, and the property is prevented from entering probate.

The first task of the executor after opening the probate case with the court is to inventory and collect the decedent's property.

Next, the executor pays any debts and taxes.

Finally, the executor distributes the remaining property to the decedent's beneficiaries, either as instructed in the will, or per the intestacy laws of the state.

Throughout this process there may be disputes. Anyone may make a claim on the estate, either by petitioning the executor or the court. If the claim is rejected, the claimant may file a civil lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property.

Avoiding probate

Probate generally lasts a number of months, occasionally over a year before all the property can be distributed, and may involve costs to hire attorneys, so some people attempt to avoid probate, most commonly by means of a living trust. This is technically a separate legal entity to which a person transfers ownership of his property. Upon their death, the decedent's heir/heiresses acquire control of the trust and, therefore, the property it owns. This avoids probate for the property held by the trust, may assist in avoiding some estate taxes, and maintains privacy. The probate process is public and records can be examined by anyone wishing to do so.

It must be noted that avoiding probate itself does not directly mean estate taxes have also been avoided, as the laws imposing the federal estate tax have been modified to include within the definition of the person's taxable estate, property held in a living trust, life insurance, "payable on death" financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. Intervivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate.

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IMPORTANT NOTICE: The information provided by FactsOfLaw.com does not constitute legal advice or any other type of advice and is provided for educational purposes only without warranty of any kind. FactsOfLaw.com has not reviewed the information on this page for accuracy and is not responsible for any errors, omissions or inaccuracies.  For legal advice you should consult a licensed attorney. Source: wikipedia.org