What is Probate?

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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.