Probate stems from Latin roughly meaning a thing proven. Proving up an individual’s estate or will is pretty much what Probate is all about. Probate systems developed in order to collect most of the assets of the decedent (the deceased individual), pay off creditors, take care of any conflicts that may exist between beneficiaries, and give out whatever is left to the appropriate beneficiaries.
Historically, the Probate process emerged as a way to accomplish several things. Primarily, the Probate process was a way to count everything in an individual’s estate and then levy a tax against it if possible. Second, by carrying out the Probate process, either creditors were able to get at assets, or they were assured that there in fact were no assets. Finally, after all the taxes, expenses and creditors have been paid off, the Probate process is a way of distributing whatever is left in an estate to the various designated, or legally entitled, beneficiaries. The process of Probate has been around for literally hundreds of years. In its most basic sense, the Probate process is the process by which your Will is determined to be your last word as to what you want, where you want it to go, and to make sure that it gets there. It is the process of proving that your Will is actually your Will, and that the Will is valid and controlling. Therefore, the Probate process is essentially the process by which your estate can be administered in an orderly and standardized manner.
For the most part, Probate affects property interests. Only some property interests are subject to the Probate process. For instance, items of personal property that are in the decedent’s name alone or property which the decedent owns as a tenant in common with somebody else are both types of property that are subject to Probate. Meanwhile, there are many other types of property that are not subject to Probate such as life insurance, retirement benefits, any property held by the decedent and another as joint property, and property held in certain trusts.
So what happens in the typical Probate? Well, first things first, someone must petition the Court. Generally, this petition is for the Court to appoint a Personal Representative, also known as an Executor when there is a Will, or an Administrator when there is not a Will. Once the Court has appointed a Personal Representative, the Court will give the Personal Representative the authority to act on behalf of the decedent. The Personal Representative will then contact the decedent’s banks, brokers, and so on so that the Personal Representative can put together an inventory of the decedent’s personal property and money. Once the Personal Representative has the inventory of the decedent’s belongings all put together, the Personal Representative will file the inventory with the Court. If there are any known or likely creditors, the Personal Representative then notifies those creditors. Notice to creditors is also published in a newspaper. At this time, the estate will enter into a sort of holding period during which time creditors make claims, get paid, assets are appraised, some assets are sold, and taxes are paid. Meanwhile, if someone is going to contest the Will or otherwise litigate over the Will itself, this also occurs during the holding period. Finally, once every issue is resolved, the Personal Representative distributes any remaining property to whoever is entitled to the property and then closes the estate.
That is the basic Probate. It seems pretty simple, pretty cut and dry, right? Well, sometimes it is that simple and easy, but other times Probate can turn into a real bear. Factors such as the size of the estate, the number and location of beneficiaries, the amount of debt and number of creditors, and the Will itself can all play a role in the complexity of a Probate proceeding. We at the Gabriel Law Office, PLLC can offer you consultation on your Probate matters. We can counsel and instruct you as to what needs to be done and how to do it. However, should you decide that the Probate process is simply too much work, or that you just do not want to do it, the Gabriel Law Office, PLLC can also act to administer your Probate. Regardless, let us help make sure that legal issues are not an issue for you or your family.