The Basics Of The Probate Process

12 June 2019
 Categories: Law, Blog


Probate is a process that can seem a little mystifying, especially to folks who've never dealt with it. While you'll definitely want to consult with a probate law attorney before you deal with a situation, there's a lot about the process that can be cleared up with a little bit of learning.

What is Probate?

A probate process can be ordered by a judge when there are questions about what the actual intent of a deceased person was in terms of disposing of their estate. It most commonly occurs when either there isn't a will or there are questions about two versions of a will that can't be quickly resolved. Creditors may also push for probate. The goal of probate is to use a reasoned legal process to protect the rights of everyone who might have a stake in an estate.

Items That are Subject to Probate

Only items that are solely owned by a person who has died are subject to probate. Notably, a person's partial stake in something, such as owning half of a business, is technically considered a solely owned item in this scenario. Simply put, if an item can be distinctly titled to one person and has been titled to the deceased person, then it's subject to probate.

Anything that has the estate named as a beneficiary may also be the subject of probate proceedings. For example, life insurance policies normally have named beneficiaries and funds go straight to those people. The exception is when the estate itself is the beneficiary. In that case, the distribution of the money will have to be scrutinized.

Exceptions to Probate

The big exception to probate is when the title to something is subject to transfer-on-death. It's common, for example, for bank accounts to have ToD provisions. Bonds are also frequently set up to be payable to a party upon the death of their owners. Depending on the state you live in, real estate and vehicles may also be moved outside probate via ToD. In most cases, a legal document needs to be in place to authorize the transfer.

Settling Debts

If creditors have serious claims on debt owed by the deceased, these must be addressed before anything can be transferred. If necessary to satisfy the debts, an administrator may be appointed to liquidate assets and to use the converted value to pay off creditors. Bear in mind that federal, state, and local tax obligations also need to be settled.

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