This article provides a high level overview of the probate process and what a probate lawyer does to help you through the probate process.
Purpose of Probate
Let’s begin by discussing the purpose of probate. Probate is the process of transferring title to assets that a deceased owned at the time of his or her death and settling the deceased’s estate.
There are essentially 4 steps in the probate process:
- Opening Probate
- Collecting Assets
- Resolving Creditor Claims
- Distributing Assets
Sounds simple enough, right?
Probate versus Non-Probate Assets
It is important to understand that there are both probate assets and non-probate assets.
Probate assets are assets that must go through the probate process to transfer title. Common examples include title to a home or funds held in an account that does not have a beneficiary designation.
Non-probate assets are assets that transfer title without a need to go through the legal probate process. Common examples include bank accounts with payable on death designations or retirement accounts with beneficiary designations.
Non-probate assets transfer title based on a contractual relationship between the deceased individual and the third party holding that asset. The contract tells that third party what to do with the asset when the deceased individual passes away.
However, in certain circumstances, non-probate assets may be subject to the probate process.
Testate versus Intestate
You may hear the terms testate and intestate when researching probate issues. These are just fancy legal terms for whether or not the deceased had a valid last will and testament at the time of his or her death.
If the deceased had a valid last will and testament, then he or she is said to have passed away testate.
If the deceased did not have a valid last will and testament, then he or she is said to have passed away intestate.
The type of probate process you must use will differ based on whether the deceased died testate or intestate.
If the deceased died with a will, then the terms of his or her will govern the disposition of assets.
If the deceased died without a will, then the laws of intestate succession regarding descent and distribution will govern the disposition of assets.
You can learn about more Key Probate Terms here.
General Overview of Administering an Estate
Administration is the legal term for the process of collecting assets, settling claims, and distributing assets of the estate.
Administration is handled by an administrator if the deceased died without a will or by an executor if the deceased died with a will.
That individual will be issued “letters” by the court. In the case of an administrator, he or she receives Letters of Administration. In the case of an executor, he or she receives Letters Testamentary.
Those letters are the legal authority for the personal representative to take possession of assets owned by the deceased at the time of his or her death. Letters also give the personal representative the legal authority to settle or pay off creditors of the estate.
Once all of the assets have been collected and all of the creditors have been paid in full or had their claims dismissed, the personal representative will then distribute assets to those people entitled to receive them.
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