The Probate Process
When someone dies owning property (real property, as well as tangible and intangible personal property), the law provides a legal procedure for settlement of the estate. This procedure, commonly called "probate," involves:
- determining what property the person owned and its value
- what debts the person owed
- distributing or assigning title of the decedent's (the person who dies) property to its new rightful owners.
Federal and state estate taxes also will be determined, although these must be paid even if no probate procedure is required.
Not all property is subject to the probate process.
- Examples:
- property held in a living trust (although similar steps are generally followed by the trustee--but without court supervision).
- property held in joint tenancy with right of survivorship
- property for which there is a named beneficiary (unless the estate is the beneficiary), i.e., life insurance cash value, individual retirement accounts, U.S. savings bonds.
A period of three months is required after notice is given to creditors to allow them to make claims against the estate for debts owed to them by the decedent. In certain circumstances, with court approval, an estate may be administered as a "simplified estate," for which direct court supervision of the activities of the personal representative is not generally required, except to open and to close the estate.
No probate proceeding is required in a few cases. Example: if the decedent had no outstanding debts (or if any debts are assumed and paid by other people) and had no interest in property subject to the probate process.
Steps in the Probate Process
- Petition for probate of the will or for administration of the estate
- Appointment of a personal representative
- Notice to creditors
- Assembly, inventory and appraisal of property
- Classification and payment of demands against the estate (such as debts of the decedent and liens against his or her property)
- Determination of homestead rights and family allowances
- Management (and sale, if necessary) of property
- Payment of state and federal taxes
- Accounting to the court and distribution of property.
