What is Probate Law?
"Probate" has a bit of a bad reputation in the world of estate planning. Most of the talk concerning probate is about how to avoid it. Probate is the legal process of administering the estate of a deceased person, resolving all claims against the estate, and distributing the deceased person's property.
While people often agree that avoiding probate can be a good idea in many cases, it's helpful to understand the probate process so that you can form the best plan for yourself.
If a person dies with a will, these are sometimes called testamentary probate proceedings. If they died without a will, the person is said to have died intestate.
The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person's property under a will.
The probate process can include all aspects of estate administration, such as:
1.Proving the validity of a will, if it exists,
2.Choosing an estate administrator, executor, or representative,
3.Totaling all assets both in and out of the estate,
4.Paying all applicable estate taxes and other debts,
5.Identifying all heirs and other relatives,
6.Distributing any remaining assets to the heirs as described in the will or intestacy statutes.
Probate typically begins when the deceased's representative files a petition along with the death certificate in the probate court. The process generally ends when the court formally closes the estate.
When one dies without leaving a will, the probate court is sometimes called upon to distribute the deceased person's assets according to state laws. Again, these proceedings are often handled much like bankruptcy cases, with priorities being established and untimely and inferior claims being extinguished by court order. Generally, after satisfying certain creditors, spouses are entitled to the largest share of a decedent's estate, followed by children, then other close family members.
Uniform Probate Code:
In the United States, in order to deal with the often conflicting and contradictory state probate laws, a Uniform Probate Code was suggested. Many states have opted to adopt it, or large portions of it, making the probate process much more uniform between different jurisdictions. However, a few states have not yet adopted its provisions, making it critical to determine which laws may affect the probating of an estate, particularly if there are assets located in multiple states, such as homes.