Probate can seem like a complicated and involved process, so it is often helpful to have a 101 guide that covers the bases. Essentially, probate is the legal process of transferring a decedent's property to his or her heirs. If a decedent dies testate, then this means that he or she left a will which will guide the probate process. If a person dies intestate, then the courts have a specific method that they use to divide property among surviving family members. The probate process is always court-supervised, which is why you may want a legal professional there to help you.
The probate process will deal with all property that is not automatically transferrable upon death. For example, if you set up a payable on death bank account or have a life insurance policy, then these won't be subject to probate. Sometimes individuals will set up trusts that will also circumvent the probate process. Individuals can also avoid probate if they set up accounts and properties that are guided by joint ownership with the right of survivorship. Also, gifts and revocable trusts can help an individual to avoid the probate process if he or she decides to do so.
The probate system can be helpful when dividing up properties. Many people try to avoid probate because they don't want to pay the fees involved, but sometimes this court-mandated process is the best way to resolve any property disputes and work through complications that cause family division. During probate, the court will determine a case contested or uncontested. Uncontested cases will often be short and simple, while contested cases can become complicated quickly. A contested case means that some of the heirs are not satisfied with the final distribution and want to argue for more money or a different arrangement.
Sometimes disgruntled heirs will argue that the decedent's will is against is previous wishes, or that it wasn't updated when it should have been. Some will simply contest the facts in the will, saying that the individual had dementia and forgot family members or did not wisely distribute his or her fortune. People will also argue that the decedent was improperly influenced into writing the final will, or did not follow legal formalities when drafting or making the will. .The majority of probated estates are uncontested, meaning that the courts will just oversee the process of distribution without any complications.
In a typical probate case, the court will oversee the collecting of property, the prepayment of outstanding debts, the repayment of taxes and claims, the collection of rights to income and dividends, and the settling of any disputes. As well, the court will watch over any distribution or transferring of the remaining property to the heirs. Normally somewhere in the will a decedent will name an executor. This family member or friend will be responsible to manage his or her affairs after death. If the decedent doesn't name an executor, the court will appoint one. The administrator will then take care of the probate responsibilities and distribute all equal or specified inheritances.
If a person leaves a will, he or she can distribute property to anyone he or she wishes. In certain situations, the court can override a decedent's wishes. For example, in most states there are laws mandating that a decedent's spouse receive at least a certain portion of the estate if he or she is still living. The court can also re-apportion inheritances if the decedent failed to factor in the repayment of debts to creditors. All of these details of the probate process are sometimes hard to work through, so hire a reliable probate lawyer to stand by your side throughout the case today!