What Is Probate?

What Is Probate?

Probate is the process of handling an estate after death, but it involves much more than that. Keep reading for more information.

Probate Definition

Probate is the legal process of reviewing a will and estate to verify its authenticity. The term can also apply to the administration of a deceased person's will. Once the estate owner dies, the court will appoint an executor who may be named in the will or elect an administrator to begin the probate process on behalf of the court.

Generally, the probate process involves evaluating the deceased's will, paying any remaining debts, and distributing the remaining amount to beneficiaries listed in the estate plan.

The Process

When a property owner dies, their assets are reviewed by that probate court, which provides a final ruling on the division of their assets according to a legalized will. Most probate cases involve verifying the will, but in some cases, the deceased does not have a will.

The Executor of the Will

The person to whom the will belongs is called the testator, and once they die, the executor is responsible for starting the probate process. An executor may be listed in the will, or it could be a financial advisor hired to do the job.

The executor's job is to file the will with the court, which triggers the probate process. Once the court-supervised verification process has begun, it will verify the will, and the executor will be given full legal power to act according to the will.

Executors must determine the estate's value and pay off existing debts or taxes that the decedent owed. There is a short window of time when creditors can collect from the deceased's estate. The executor has the power to reject debt claims, but doing so may extend the process.

In some cases, the deceased's estate is insolvent – their debts are greater than the value of the estate. If the estate is insolvent, the probate process may not be necessary.

Once all debts have been paid, the will is verified, and the executor has filed the final tax form on behalf of the deceased, beneficiaries will receive the items or assets promised to them in the will.

Probate Without a Will

Intestate is a term applied to estate owners who died without a will. Instead of following a will, the executor will administer the estate according to state law, and an administrator will distribute assets to surviving spouses, children, or parents. Administrators act as representatives of the state as opposed to executors who act in concordance with the will.

If someone dies without a will or heirs, their assets will pass to the state.

Is Probate Necessary?

Not all estates go through probate. It's important to understand whether an estate is required to go through probate because it can be a long, expensive process. In general, probate without a will is more expensive than with a valid will. Probate records are also public, meaning that the estate and settlement of the estate are accessible by anyone.

In general, estates below a specific value and insolvent estates do not have to go through probate. Some individual assets bypass probate because of contracts or agreements. Other assets are exempt from probate, including:

401k plans

Individual retirement accounts (IRAs)

Life insurance proceeds

Medical savings accounts

Jointly owned assets

Trusts



If an estate is designated to beneficiaries through a trust, it is exempt from the probate process.

Giving You Peace of Mind

Fitzpatrick Santos Sousa Perugini P.C. understands that losing a loved one can be devastating. That is why we handle the legal intricacies of probate so you can focus on grieving your loved one. Our firm offers various probate services, from managing assets to overseeing debt payment.

Contact our compassionate legal team today for more information.