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Probate Law Information
What Is Probate?
Probate is the legal process of settling a dead person's
estate: specifically, distributing the decedent's property.
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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