What Is Probate?

What Is Probate?

Probate is the legal process by which a person’s debts are settled and assets distributed upon their death. If a person drafted a Will prior to their death, the first step in probate is to lodge the Will with the Probate Court. In the absence of a challenge to a Will, most wills are assumed to be valid if the Will was signed by the testator and witnessed by at least two witnesses who in turn sign the Will in front of a Notary Public. If the person died without a Will, they are deemed to have died “intestate” and the laws of the State in which they resided at the time of their death apply to determine who has authority to administer the estate and who is entitled to the assets. If there is a Will, the person named in the Will as the Executor is appointed by the Court to administer the Estate. If there is no will, the Court will appoint an Administrator from a statutory list of qualified persons in order of priority, usually beginning with the surviving wife if there is one, or if not, then the surviving children.

Once the Executor or Administrator is appointed by Court, the assets of the Decedent are identified and an inventory of assets is filed with the Court. Probate only apples to those assets owned by the Decedent at the time of their death that are not subject to a claim payable by contract, like a beneficiary under an insurance contract. Also, joint tenancy property is not subject to probate. After the inventory is filed, a Notice to Creditors is mailed to all known creditors and published in a local newspaper for a period of 60 to 90 days depending on the size of the Estate. Probate is as much about protecting the rights of creditors of the Decedent as protecting the rights of heirs. Creditors who file valid claims can be paid from the assets of the Estate prior to the remaining assets being distributed to the heirs.

Once the assets of the Decedent have been identified and the Creditor Claims settled, the Estate is in a position to be distributed to the persons identified in the Will as beneficiaries or to the persons identified in the State’s laws of intestate succession if there was no will. While probate exists for the protection of the deceased person’s loved ones and valid creditors, the process is time consuming and expensive and can be avoided with the use of a properly drafted Revocable Living Trust. For an interesting article on the need for a properly drafted estate plan, click on the following link: http://nypost.com/2015/04/26/battle-over-robin-williams-estate-proves-need-for-updated-wills/

If you have questions about probate or how to avoid probate with the use of a trust, contact J. Scott MacDonald at MacDonald & Associates for a free consultation.

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