What is Probate?

The word “probate” is taken from the Latin word, “probere,” which means “to prove.”  Probate is the legal process whereby a will is proven valid or invalid, and the total assets of the deceased person are counted, appraised, and inventoried.

Probate court also makes sure that all taxes and debts against the estate are paid, and then the remaining assets are divided among the heirs and beneficiaries.

If a person has all of his property is his or her name, these are known as his or her “assets.”  Assets include real estate, tangible property, such as jewelry, cars, etc, and intangible property, such as bank accounts, and stocks or bonds.

Most of the time, a person’s spouse and children would inherit his or her assets after he or she dies.  However, first they must prove that they are legal heirs by submitting marriage and birth or adoption records.

Before the heirs can take control of the assets, the assets must be authenticated by the courts.  To accomplish this, the heirs must submit the person’s death certificate and documentation that all of the assets belong to the deceased.

The probate court will then appoint a personal representative to administer the probate case.  He or she will inventory, appraise, and authenticate the assets.

There are special situations that arise that are exceptions to this process.  For example, certain assets belonging to the deceased may not go through the probate court.  For instance, if the deceased appointed someone as beneficiary when opening a bank account, the funds from the bank account would be transfered to the beneficiary into the beneficiary’s account directly upon the bank holder’s death, without going through the probate court.

The process is different if the deceased prepared a document where he or she clearly spelled out how much and too whom the assets should be given.  The deceased may have named a personal representative, but if he or she did not, the court would then appoint and “executor” and a guardian for any children involved who may need help managing any assets.

This document is called a “will” and should have been notarized and signed by two or more witnesses.  If a person dies after writing a valid will, then he or she is considered to have died “testate,” which means “to make a will.”  The person writing the will is known as the “testator.”  Conversely, if someone dies without leaving a will, then he or she is known to have died “intestate,” and the beneficiaries would have to be determined appropriately.

Because the law requires that the heirs or beneficiaries prove the validity of the will, the will has to go through the probate court process.  Only then will the probate court begin the process of paying any outstanding debts and taxes against the estate, and then divide the remaining assets to the heirs and beneficiaries, according to the directions of the will.

The court issues a formal order to transfer the property directly to the heirs and beneficiaries according to existing inheritance laws.

How long does the probate process take, you might wonder.  The completion of the process depends upon a number of things, such as the size of the estate, worth of the assets, validity of the will, the appointment of the executor or personal representative in case there is no will, and locating and notifying all of the beneficiaries.

If the paperwork is not too complex, then the process will generally take less than a year.

However, if the will is contested or anything untoward happens in the process, probate can take many years to complete.


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