What Is Probate?

When a person dies, the legal title of property from their estate has to be transferred to the intended beneficiary via a will. If there is no will, then it is left to determine who is the legal heir to the estate and the property. Collectively, these processes are known as probate.

Probate is a process that is designed to enable the proper transfer of the decedent’s estate to the rightful beneficiaries. This process is also used to collect any taxes due on the transfer of the property. Outstanding debts can also be settled through probate, and usually a date is set by which time creditors must file any claims that they have. The probate process takes at least seven months, and the deadline for claims from creditors is normally six months from notification of the probate. The balance of the estate or property following settlement of these debts and taxes is then distributed to the beneficiaries. The nature of probate means that if there is no estate or property to be distributed then there is no need to go through probate.

Probate is necessary not only to facilitate distribution of property from the will (if there is a will), but also to allow objections to the will by other parties. Objections can arise for a variety of reasons, and investigations may also be required for such reasons which include: the possibility that the deceased was not of sound mind when the will was made; the possibility that another will was made at a later date; the possibility that the will was forged or that the decedent’s decision was improperly influenced.

If any of the assets have a successor by contract, then they will not be eligible for disbursement through probate, as they will automatically go to the contractual beneficiary. The types of items dealt with through probate include property, furniture, vehicles, money, land, artwork, and shares in a business. In the case of items such as money accounts or property, they must have been owned solely owned by the decedent to be eligible to be distributed through probate, as jointly owned ones will most likely already have a beneficiary by default.

When a will goes through probate, both the heirs and all of the beneficiaries will be notified about the will. This is where contestation of the will can take place, where accusations mental instability, improper influence, and forgery may begin to fly. At this time, a list of the decedent’s assets is made up in preparation for disbursement in accordance to the will. The disbursement of the decedent’s assets also has to be accounted for, whether they were distributed to beneficiaries or were used to pay off debts and expenses.

One aspect of the expenses that probate entails is the legal fees, and you may find that the lawyer that deals with the probate is entitled to a percentage of the assets – even for assets that do not actually go through probate. Depending on how much the decedent’s estate amounts to, these fees can add up. The flip side of this, however, is when an estate is handled by a non-lawyer. The costs, in both dollar amounts and time, can often far outweigh those that are collected by a probate lawyer; who will guarantee that the job is done right the first time.

The public are allowed access to probate records, and it therefore possible to see how much estate was left by a deceased individual, who the beneficiaries were, and what they received from the estate.

All About Wills

What If Someone Contests a Will?
What Warrants a Valid Will Contest?

What Are the Legal Requirements for a Will?

What is Probate?

Is Probate Necessary?

Can Probate be Handled Without Using the Services of an Experienced Probate Lawyer?

Who is Responsible for Handling the Probate Process?

What Does the Personal Representative Do?

Does the Personal Representative Get Paid?

What If a Personal Representative Does Not Perform Their Duties Properly?