Probate is the legal process of processing and transferring property and assets upon one’s death. Although the customs and laws of probate have changed somewhat over the years, the purpose of probate has remained the same.
People itemize their intentions about the transfer of their property at the time of their death, usually in the form of a will. The property concerned is then inventoried, outstanding debts are paid from the estate, taxes are paid and the remaining property, and assets are distributed among the heirs and beneficiaries.
Today’s probate courts are endowed with the task of sorting out the legalities of the transfer of property when someone dies. The property we are talking about is any property owned by the deceased or “decedent” at the time of death, which does not directly pass to another person by ownership or designation, for example a bank account set up as “payable on death,” or a life insurance policy.
One common expression that is heard is “probating a will.” The process of probate is concerned with proving to the court that the decedent had a legal will when he died.
What is normally taught about probate nowadays is how to avoid it. The reason so many people are concerned with avoiding probate is to avoid the sometimes expensive probate fees.
In fact, it is quite possible to avoid the probate process completely, with a little advanced planning.
There are three common ways that people avoid probate: joint ownership of property with the right of survivorship, gifts, and revocable living trusts.
However, the probate system exists for a reason and can protect all parties involved.
What exactly happens in probate? The probate process can be contested or uncontested. Many probate cases are contested because a disgruntled heir is seeking more that his or her share of the decedent’s property and thus has to prove why he or she deserves more. The complainant will often argue that the decedent was not in his or her right mind when making the will (insufficient mental capacity), or that he or she was unduly influenced by someone else while deciding who gets what.
The complainant will often challenge the validity of the will by finding ways to prove that the decedent did not follow proper legal procedures when writing the will.
The majority of probate cases, however, are uncontested and follow the same basic procedure.
First, the probate court will appoint an executor or personal representative to oversee the court proceedings. The properties are collected and inventoried. Then, all debts, claims, and taxes against the estate are paid.
After that step, anything owed to the estate such as income, interest or dividends are collected. Next, any disputes are settled and the remaining assets and properties are distributed to the heirs and beneficiaries.
In this country, people may leave their property to whomever they wish and may make such provisions in their wills. There are occasions where the wishes of the decedent have been overridden by the courts.
The larger and more complex a case is, the longer and more expensive the probate process can be.
These are the basics of probate. To learn more, do your research online or the library-there are plenty of good estate planning and estate management resources available.
