What is Probate?

Simply put, probate is the legal process by which property and assets, once owned by a person who is now deceased, is passed to his or her heirs after death.

In other words, probate is simply passing title and/or legally determining "who gets what" when someone passes away, either by looking at the Will, or if no Will exists, then under the laws of intestacy, or laws that determine the hierarchy of the heirs of the estate.

Probate transfers legal title of property from the estate of the person who has died (the "decedent") to his or her legal beneficiaries. The probate process is a required legal course of action of identifying and inventorying the deceased person's property; accounting and appraising the property and then paying taxes and creditors with the deceased's assets.

The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will (in testate). The process of probate determines who receives the property and/or assets of the deceased.

Probate Procedure and Management

Probate is typically overseen by an executor, if there is a Will, or by the court and a court appointed "personal representative" if a Will does not exist. An executor is the person assigned to administer the estate.

Most jurisdictions require that the executor post a bond to protect the assets of the estate. Simply having a Will does not mean you can dismiss going through probate. Even though the Will makes the process simpler- probate is still required for assets in the deceased's name.

Probate petitions are filed in the county where the decedent was living at the time of death, no matter where the person passed away. Legal hearings are usually scheduled four to six weeks from the date of filing of the "petition for probate".

It is required that notice of the probate hearing be sent to all the decedent's heirs as well as every person mentioned in the Will.

Avoiding Probate

To avoid the need for probate, and even a Will, a living trust can be used, assuring that a decedent's property and assets are transferred to his or her heirs according to the decedent's wishes. Many families avoid probate in this manner.

It is worth noting that administration of an estate through probate is more expensive and slower than administration under a living trust. Moreover, jointly owned property and the proceeds of life insurance, retirement accounts, and annuities pass to the surviving joint owner or the named beneficiaries without the necessity of probate.

In general, however, property that the deceased owned individually moves through probate in the usual fashion in order for ownership to pass to his or her heirs.

This summer, folks visiting HeirAdvance.com have asked our Probate & Trust Loan Editor a lot of questions. Here are some of the more interesting and pertinent queries answered by The Editor:
Are all the states in the US the same when it comes to Probate laws and Probate Cash Advances?
No. Probate laws may be different from state to state.  Rules and regulations may differ.  For example, the time period that potential creditors have to come forward varies from state to state.
Do I have to pay Federal taxes on my Inheritance?
If federal Inheritance taxes are due, either the Estate or the individual Heir will be responsible.
Can the Estate and/or I avoid Inheritance Taxes altogether?
That depends upon the total value of the Estate and whether or not there was any income coming to the deceased from these assets.
If my Inheritance is in a Trust, can the Trust avoid Inheritance or “Death” Taxes?
No. Trust Inheritance taxes, if owed, must be paid.
Are there any states where there is no tax at all on one’s Inheritance?
Yes. But federal Inheritance taxes may still be applicable.
If I pass away with no Will and have no children, are all my assets automatically inherited by my wife?
That would depend on circumstances and state Inheritance law, as well as other variables.
Will a bank, or my credit union, give me a loan based on my Inheritance, if I’m an Heir of an Estate in Probate? 

No it’s too risky for them.  No traditional lender will provide a Probate Cash Advance or Inheritance Loan.

If my siblings and I have an Inheritance coming to us in the form of a house and property only, with no cash, can we still apply for a Probate Loan?
Generally yes, depending on the value of the Estate property, whether or not its’ for sale, and it’s salability.
If my Inheritance has no liquid assets, but has a house in the Estate, with a lot of debt, can I still get a Probate Loan?
Probably not.
If I intend to leave my wife and kids an Inheritance, would it be to their benefit if I set up a Trust?
Yes.  Avoiding the Probate process could save some Inheritance costs and length of time for Trust asset distribution.
Can I get an Inheritance Loan now, if Probate has not yet started, but we expect it will in a few weeks?
No, but once Probate is open, we can probably help with a Probate Cash Advance or Inheritance Loan of some kind.
Can I apply for an Inheritance Loan if I am coming into an Inheritance from my dad but there is no property and no plan to begin Probate at all?
No.  The only way we can provide an Inheritance Advance is if the Estate is in Probate or Trust.
During Probate, if one of the Heirs challenges the Will, does that prevent me from applying for an Estate Loan, or Inheritance Cash Advance?
Not necessarily.  It depends on what the Will challenges are.
Can I get my entire Inheritance in advance as a Trust or Probate Loan?
No.  We can advance you an Inheritance Loan which is a percentage of the total Inheritance coming to you.
Is the time period for Estate Inheritance distribution the same in all states?
No, Probate laws vary from state to state.  The length of time you must wait for Probate to distribute to get your Inheritance varies by state.
Does Heir Advance Co. provide Inheritance Loans or Trust Advances in Canada?
Yes, we do provide Probate Loans and Trust Fund Advances for Heirs of Estates in Canada.
If my Inheritance is in the UK, can I get a Trust or Probate Advance?
No, we do not provide Trust Loans or Probate Cash Advances for Heirs of Estates  in the United Kingdom.  Your Inheritance must be a part of an Estate in America or Canada.
If I refer another Heir from the same Estate my Inheritance is coming from, can I get a Tell-a-Friend commission?  If so, how much?
Yes, if you refer an Heir from the same Estate, and he or she gets a Probate Loan or Trust Advance from Heir Advance, you will receive a standard Tell-a-Friend fee.  How much depends upon the size of the other Heir’s Inheritance Loan.


All About Probate: in America & Canada
What is Probate, and what does Probate accomplish for Heirs?
What is the average Probate time-frame, from beginning to final Probate distribution?
What court fees and legal costs are associated with Probate?
How are Inheritance & Estate taxes owed by the deceased addressed during Probate?
Why do Estates have to go through Probate? Is it required everywhere in America and Canada?
How and where is Probate administered?
What is the UPC (Uniform Probate Code)? Does it affect Probate and Inheritances in all states in the U.S.?
Is it possible to go through Probate without a Probate lawyer?
Can Estates legally bypass Probate, or is Probate compulsory when Inheritances are involved?
How are past debts of a decedent’s Estate dealt with during Probate?
Who is in charge of managing the Probate process?
What has to be done when there are Probate Estate assets in more than one state?
What are the responsibilities of an Executor / Personal Representative during Probate?
How does Probate protect Heirs that are expecting an Inheritance?
If an heir to an inheritance in Probate is also acting an Executor / Personal Representative of the Estate, can he also accept administration fees?
Is it necessary for all Estate assets (stocks, bonds, property, cash, etc.) to go through Probate?
What can be done if the Personal Representative managing the Probate doesn’t do a proper job?
How are creditors of the Estate dealt with during Probate?


All About Probate & Wills: in America & Canada
If there is, or is not, a Will involved, is it always necessary to go through Probate?
If I am named as an “Executor” in a Will that will go into Probate, must I accept that responsibility?
If the Will is contested or uncontested, how would this affect the Probate process?
How does the Estate proceed if there is no valid Will?
If there is no valid Will, or a Will can’t be found, how does this affect Probate?
During Probate, what happens if the Will is contested?
During Probate, how is the Estate affected if an Heir objects to the Will?
When I create a Will, how can I can assure that no one Will be able to challenge the document during Probate?


General Info - Trusts
What exactly is "a trust"? What makes it a legal estate instrument?
What are the most popular forms of trusts in the US?
What is a trust estate?
What is the difference between a Trustor, a Trustee and a Beneficiary?
What are the duties and responsibilities of a Trustee?
How do I establish a Trust that is in line with my, and my family's, specific needs?
Where would a Trust be physically located?
Can one create a trust, serve as the trustee and also be the trust beneficiary?
How is a "trust agreement" different than a "declaration of trust"?
What are some of the different forms a trust instrument can take?
What are some of the ways a trust can be an effective estate planning instrument?
What type of people should create a trust?
How much does it cost to create and maintain a trust?
When is a good time in ones life to plan and create a trust?
How does one go about selecting trustees and successor trustees?
What is "conservatorship" all about, in relation to a trust or probate?
How can a trust prevent a conservatorship proceeding?
How could a trust legitimately lower the federal transfer tax liability of an estate?
What protection is created for my family by having a "revocable living trust"?