OpenJurist

What is probate?


When a person dies, someone must step in to wind up the deceased persons affairs. Bills must be paid, property must be accounted for, and items must be passed on to the people chosen by the deceased person. If state law requires that all this be handled through court proceedings, the process can take many months.

Probate is a legal process that includes:

  • If there's a will, proving in court that it is valid (usually a routine matter)
  • If there is no will, determining who inherits under state law
  • Identifying and inventorying the deceased person's property
  • having the property appraised
  • paying debts and taxes, and
  • distributing the remaining property as the will or state law directs.

Typically, probate involves paperwork and court appearances by lawyers, who are paid from estate property that would otherwise go to the people who inherit the deceased person's property. Property left by the will cannot be distributed to beneficiaries until the process is complete.

Probate rarely benefits your beneficiaries, and it certainly costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can't easily be paid from the property you leave.

Who is responsible for handling probate?
In most circumstances, the executor named in the will takes this job. If there isn't any will, or if the will maker fails to name an executor, the probate court names someone (commonly called an administrator) to handle the process-most often a surviving spouse (or domestic partner) or the closest capable relative.

If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return, and distributing property to the people who are supposed to get it.

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