All the Facts You Need to know What is Probate!
What is Probate? It is the process for proving to a court that the document that is being presented is the last will and testament of the deceased. You have to prove that the deceased in question knew what it was and signed it under his free will at a time he was mentally competent in front of witnesses.
It then involves getting the court to give you authority to gather the assets, pay the obligations of the deceased, and distribute the assets to the beneficiaries named in the will. Each state has its own unique procedures for proving the will and handling what is called “the deceased estate”.
States use many different names for the court in which the process occurs: some call it the probate court; some call it the surrogate’s court; others call it the orphans court; but most call it the probate section of the superior county court, although the states generally do the same thing. The document is filed in court, and the court requires that everyone who is entitled to inherit something from the deceased is notified and understands what is probate in case it turns out that the document is not a valid will.
This gives them the opportunity to object. Possible objections might include claiming that the document is a forgery, the defendant didn’t sign it, it wasn’t adequately witnessed, the deceased was mentally incompetent, or it was subject to undue influence. It’s relatively rare that someone with the proper standing to object comes into court and objects to the will. In that case, the probate court typically makes a legal finding to the effect that the will was proved or not proved, and that the document is, or is not, the last will of the deceased.
Within about six weeks, the will is usually officially accepted for probate. The court issues formal legal documents appointing the person named in the will as executor or personal representative with full legal power and authority to administer the deceased probate estate, including paying his bills and taxes and beginning to distribute the estate of the deceased to the named beneficiaries.
If the deceased left minor children, especially if the other parent is out of the picture, the probate court judge, typically, also appoints the persons that the deceased nominated in the will to be the child’s legal guardian and the guardian of their property. If needed, the court also sets up procedures to safeguard their assets until the children turn 18, or reach such later age, as the will sets out. Depending upon what the will says and what the state law provides, the probate court may also require periodic reports to make sure the executor has done what the will provides, and whether it requires prior approval for other transactions to protect the interests of the beneficiaries.
The Probate Process
In this section, we are going to be taking a look at the probate process. The probate process is completed with four basic steps:
1.Filing a petition and giving notice to beneficiaries and heirs
This is the first step in the probate process in which a petition is filed with the probate court to admit the will to probate and appoint the executor. If there is no will, an administrator of the estate is selected. The notice of the petition in the court hearing must be provided to all of the heirs and beneficiaries. If an heir or beneficiary has anything against the petition, they can do so in court. Notice of such hearings is published in newspapers to notify unknown creditors of the beginning of the process.
- Issuing notice to all known creditors of the estate and taking inventory of the estate property following appointment by the court
This is done by the representative who gives written notice to all creditors of estate based on the state law in which any creditor who wants to claim the assets of the estate must do so within a limited time.
All of the deceased’s probate properties including stocks, bonds, and real properties are to be listed with many of the assets being valued by people appointed by the court.
- All debts, taxes, and funeral expenses must be paid from the estate
The appointed representative must determine legitimate creditor claims and pay them off as well as any other final bills from the estate. In some cases, the personal representative is permitted to sell the estate asset to satisfy the obligations of the decedent.
- Transfer of property legal title according to the will
After the waiting period, during which creditors have laid claims on the estate with all the legitimate ones approved and bills paid, the representative petitions the court for authority to transfer the rest of the assets to the beneficiary as stated in the decedent’s will. Under some state laws, beneficiaries of the estate are allowed to waive off requirements while in some other states, the beneficiaries must include an account on how the assets were managed during the probate process. At the approval of the petition, the representative draws up new deeds of the property and then transfers them to the correct recipient.
Bottom Line
In short, probate is rarely as scary, complicated, time-consuming, or as expensive as many people fear. Due to the cost of involving a court in the process, many people try to minimise expenses associated with the probate process. As highlighted earlier, there are many taxes and legal complexities associated with the probate process; however, it is not a situation without a solution.
What can I do?
You can talk to your financial advisor and lawyer and ask them “What is Probate all about?” and the best way to go about things, to prevent leaving your family and loved ones with nothing on your passing.
It is merely a factor of getting the correct information with regards to the probate process, your financial situation at the moment, and the available options that would suit that situation in a bid to get the right results in the end. If you need legal advice concerning the probate process, your attorney can be contacted for more information.
