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When someone dies and leaves a significant amount of property to their beneficiaries, the estate will sometimes go through a legal process known as probate. Special courts known as probate courts handle all aspects of this procedure. This article is a brief guide to the probate process to help those with limited knowledge of this important area of the law.
Will
A key consideration in probate law is whether the deceased left a will. If the deceased person left a will, then the estate will be distributed as designated in the will. If the deceased does not leave a will, this is called dying intestate, and the assets are distributed in accordance with state law. For instance, if a widowed person with children does not leave a will, then each child is generally entitled to an equal amount of the estate under state laws. If the person leaves a will, they may distribute their assets to the children however they wish.
Included and Excluded
Certain types of assets are generally included in the probate process, while other types of assets are generally excluded. For instance, personal property such as cars and jewelry, bank accounts that are in the decedent's name alone without a designated beneficiary, real estate that is only in the decedent's name, and any interest in a partnership, legal liability company, or corporation, typically fall under the authority of the probate court.
Assets that are generally excluded from probate are bank accounts with a designated beneficiary, any property owned by a living trust, property owned in joint tenancy with another individual such as a home owned by a married couple, and life insurance policies that name a specific beneficiary other than the person who has passed away.
Uniform Probate Code
Probate laws can vary from state to state. In an attempt to somewhat remedy this situation, states have adopted a set of laws known as the uniform probate code either in part or in totality.
Creditors and Claimants
When a person passes away with an estate, the estate's representative must search for all the creditors to the estate and anyone who has a claim against the estate and notify them that the decedent has died. The creditors and claimants then have a certain amount of time to notify the probate court or the estate's representative that they intend to pursue their claim. If there are no assets left in the estate after the creditor and claimants have been paid, then the estate is insolvent and the beneficiaries do not receive any assets.
Probate is a very complex area of the law. For expert advice on this subject, contact a probate attorney.
Share11 February 2019
