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Probate Law
1. What is probate?
Probate is the process that transfers legal title
of property from the estate of a person who has
died to his or her proper beneficiaries. The term
probate refers to a proving of the existence of a
valid will, or determining and proving whom one's
legal heirs are if there is no Will. In addition,
probate is the process used to determine who gets
property.
2. Why is
probate necessary?
The primary function of probate is transferring
title of the decedent's property to his heirs
and/or beneficiaries. If there is no property to
transfer, there is usually no need for probate.
Another function of probate is to provide for the
collection of any taxes due because of the
deceased's death or on the transfer of his or her
property. The probate process provides a mechanism
for paying outstanding debts and taxes of the
estate, for setting a deadline for creditors to
file claims and for the distribution of the
remainder of the estate's property to ones'
rightful heirs.
3. Can I
handle probate without a lawyer?
While there is no requirement to use a lawyer,
probate is a formal procedure. Minor matters or
any delays or inconveniences can be upsetting;
pose issues of fairness, and create unfounded
suspicion among family members. Therefore, it
generally is a very good idea to hire a lawyer to
handle probate.
4. How long
does probate take?
The duration varies with the size and complexity
of the estate and the difficulty or ease in
locating the beneficiaries. If there is a Will
contest, or anyone objects to any actions of the
Personal Representative, things can drag out. Some
matters have taken decades to resolve.
5. How can I
avoid probate of my own estate?
One approach to avoid probate is through use of a
living trust that holds legal title to some or all
of your property at the time of your death. The
trust is a legal entity, which survives you after
your death.
6. Does all
property have to go through probate?
No. Most states allow a limited amount of several
types of property to pass to beneficiaries free of
probate. Real and personal property owned as a
joint tenant passes to the surviving co-owners
without going through probate. Other types of
benefits, such as a life insurance policies or
annuity payable directly to a named beneficiary
bypass probate. In addition, money from IRAs,
Keoghs, and 401(k) accounts transfer
automatically, outside probate, to the persons
named as beneficiaries.
7. Where is
probate handled?
Probate usually occurs in the appropriate court in
the State and County where the deceased
permanently resided at the time of death. The
probate court usually handles all the personal
property the deceased owned, plus all of the real
estate that the deceased owned that is located in
that same state. |
