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Probate Law: The Probate Basics

Introduction

The transferring of property upon death is rooted in tradition, custom and law. In fact, you can trace it all the way back to the book of Genesis. In the era of the Roman Empire, formal laws and structures were added that led to the development of the probate process as it is today. Although probate customs and laws have changed, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death, typically in a will. Stemming from the roots of ancient tradition, the probate process governs the distribution of property according to the dead person's wishes.

Probate Administration

Today the probate process is a court supervised process to sort out the transfer of a person's property at death. Property subject to the probate process is property owned by a person at death, which does not pass to others by designation or ownership (legal title). A common expression you may have heard is "probating a will." This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it. The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is on what happens in probate.

What Happens in Probate

The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent's property than received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:

1. Collecting all probate property of the decedent;
2. Paying all debts, claims and taxes owed by the estate;
3. Collecting all rights to income, dividends, etc.;
4. Settling any disputes; and,
5. Distributing or transferring the remaining property to the heirs.

Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate. The administrator will fulfill many of the same duties listed above.

Typically, people may leave property to any person they wish and may make such designations in their will. However, in certain situations, depending on the relationship to the decedent and the laws of the state, the decedent's wishes may have to be overridden by the court. For example, in most states, a spouse is entitled to a certain amount of property. Furthermore, creditors may have a claim on the property of the estate. Each jurisdiction usually prescribes how long an estate must be open to give creditors an adequate time frame to present claims to the estate. The more complex and sizable the estate, the longer and more time-consuming this process can be. Costs typically included in the probate process are:

1. the fees of the personal representative;
2. the attorneys' fees; and,
3. court costs.

Why do I Need a Will?

A will is simply a formal way of setting forth your wishes regarding how you would like your property disbursed upon your death. You should consider a will whether you are single, married, have minor children or own even a small amount of personal assets or property. In fact, every adult should have a will or other means to control the disposition of their assets. If you have not formalized your intentions, your estate may meet with unnecessary and costly litigation, adding to the emotional turmoil of your survivors.

Conclusion

Rooted in ancient tradition, the probate process is a system aimed at protecting a decedent's property and his or her heirs. Generally, property not passing by way of title or beneficiary designation will pass through probate under the protections of the court. The property will be gathered upon death, claims against the estate satisfied and remaining property distributed. Avoiding the financial and emotional turmoil of will contests, starts with choosing an experienced estate planning attorney. Our firm has years of experience drafting wills, trusts and probating estates.

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