Probate is a court proceeding that may be necessary following an individual’s death and it is governed by each state’s law. Even if an individual has a will, the will must be probated through a court proceeding in the county of the decedent’s last residency. This means that the will must be proven in court by valid witnesses who have signed the will. An individual will then be appointed as either the executor or executrix named in the will or, if there is no will, an administrator or administratrix. These individuals are also known as personal representatives of the decedent’s estate.
The legal process known as probate also identifies the decedent’s rightful heirs either as named in the will or as dictated by state law where there is no will. When an individual dies with a will they are said to die testate. When an individual dies without a will they are said to die intestate. Once the will is proved valid in court and a personal representative is appointed then that personal representative is to carry out the wishes of the deceased as stated in the will or as defined by state law. An order is issued giving the personal representative those specific rights. The personal representative will handle the estate’s assets, sell any property necessary, pay any debts, and then distribute the assets to the heirs named in the will. They may also need to pay property taxes, complete appropriate tax returns and handle any other legal transactions of the estate.
Whether or not a decedent’s will needs to be probated through a court proceeding depends on the type of assets owned by the deceased and how ownership of those assets is held. Some property may not be subject to probate. Those types of properties are jointly held properties with right of survivorship, life insurance policies, pensions, IRAs, annuities and 401(K)s, all of which may have designated beneficiaries. Trust property and other types of property that are directed payable on death may also be excluded from the probate process.
The personal representative is required by the court to prepare and file an inventory of all the estate assets and debts, thereby notifying any creditors of the death, which will then allow them a certain amount of time to make claims against the estate
, The personal representative is also responsible for clearing any titles to property, providing payment for state and federal taxes and distributing remaining assets to the beneficiaries.
This process can be very difficult. Having a seasoned probate attorney who specializes in probate law and who has encountered various unique and difficult situations to assist you in handling the probate process will most certainly help to make an already difficult time less stressful for personal representatives and heirs alike.