How Does the Legal Probate Process Work?
The probate process refers to what occurs following the death of an individual. That individual’s estate and belongings are handled through the probate process in order to be given to the rightful heirs. The process also encompasses settling that person’s debts with creditors.
This process occurs whether a person dies with a will or without one. It starts when the executor of the will, the person nominated by the decedent in his or her will, furnishes the document to the court. If the person died without a will, the next of kin will be appointed by the court. Usually, this person will be either the spouse of the decedent or an adult child.
Once the executor is established, a petition is filed with the probate court. This step admits the will to the probate process under the executor’s oversight or appoints the administrator of the estate if the person died intestate. At this point, the designated individual gives notice to the decedent’s creditors.
With this notice, an official inventory of the estate’s property is provided which includes real property, business interests, stocks, cash, and other assets. In some states, an appraiser is appointed by the court to value all of the assets. Sometimes an individual appraiser will be hired to value any of the decedent’s non-cash belongings such as artwork or antiques.
At this point in the process, all taxes and other debts are paid from the estate. The title to any property is also transferred to the rightful new owners. If a person died with a will, the property is transferred to the person named in the document. If there was no will, usually the laws pertaining to intestate estates will let the property go to the next of kin.
A waiting period then begins so enough time is given to all creditors. They can file any claims that they need to against the estate. Any approved claims or bills then get paid and then the remaining assets are transferred to the beneficiaries of the will.
If there was no will, the laws pertaining to an intestate process will prevail. If the will specified that sums of money are to go to a minor child, a trust will be established for that minor child. This part of the process may also apply to an incapacitated individual.
While these are the general processes involved in probate, there are some states that allow a certain sum of money to bypass the process. For instance, in California, up to $100,000 may go to a decedent’s survivors without the need for probate. Any property that goes through a living trust or a joint tenancy also does not need to go through probate. This is one reason why many people create living trusts with the help of an attorney.
It is never too soon to consider having a living trust or will created. For more information, you will want to consult with an attorney that specializes in wills and probates. Check out this Video on why you would even need a living trust: