Probate

Probate

Probate

After an individual dies, the legal title (ownership) of their property must be transferred to the beneficiaries listed in their Will. If the deceased individual did not construct a Will, the beneficiaries will be designated by state law. This process—regardless of the presence of an active will– is referred to as Probate. Probate Law is the legal process of administering the distribution of a deceased person’s estate. Probate law enacts this process by resolving all claims (debts against the deceased person’s property) and distributing the remaining property as designated by the Will. Probate law interprets the instructions of the deceased party, names the executor as the formal representative and decides the interests of other parties who have claims against the estate.

Probate is a formal process by which the Will of a deceased individual is proved to be valid, so that their property and assets can be transferred to the beneficiaries of the Will. This process requires:  filing a petition, obtaining waivers from other interested parties, publishing legal notices,  distributing assets, paying off creditors, and evaluating tax obligations.  A similar process is required where no Will has been constructed.

Some of a decedent’s property may never enter probate because it may pass to another individual contractually. Moreover, properties held in revocable or irrevocable trust—only if created during the grantor’s lifetime—will also avoid probate. In these instances, court action is not involved and the property is distributed privately (still subject to estate taxation).

If probate is necessary, the personal representative will first collect and inventory the decedent’s property. The representative will then pay all debts and taxes attached to the estate. Finally, the representative will distribute the remaining property to the beneficiaries, as instructed by the Will or according to the intestacy laws of the state.

Parties may challenge any aspect of Probate law and the process; a party may directly challenge the validity of the will, challenge the status of the person serving as the personal representative or challenge whether the personal representative is properly administering the estate.