Probate is the legal process by which property owned by a person who is deceased has been passed to his or her heirs after the death. In other words, probate is simply passing title or determining who gets what when someone passes away, either by looking at the will, or if none exist, then under the laws of intestacy, or laws that determine the hierarchy of heirs. In other words, probate affords for overall management and supervision of the distribution of the deceased person’s assets in accordance with the instructions left in a Will or in keeping with the state’s statutes (if a Will does not exist or cannot be located).
Administration of an estate through probate is more expensive and slower than administration under a living trust. Probate transfers legal title of property from the estate of the person who has died (the “decedent”) to his or her legal beneficiaries. Probate involves identifying and inventorying the deceased person’s property, accounting and appraising the property, and then paying taxes and creditors with the deceased’s assets. 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, property that the deceased owned individually must move through probate in the usual fashion for ownership to pass to his or her heirs.
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 (intestate). The process of probate determines who receives the property and/or assets of the deceased. 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 everyone mentioned in the Will.
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.