What Is Probate?

When an estate owner dies with a simple will or no estate plan at all, the estate must go through the probate process. This provides the beneficiaries, creditors and anyone else with a vested interest in the estate with a supervised forum in which to distribute assets and discuss the terms of the will. State laws supervise probate courts and asset distribution after a death, but some factors apply to most estates no matter what state the deceased lived in.

Definition

Probate is a legal proceeding that determines how the property of someone who has died will be distributed. The proceedings take into consideration the individual's will, any taxes that need to be paid and the state's laws about the distribution of assets after a property owner dies. The court supervises the distribution of assets and mediates any disagreements that arise.

Probate Property

Probate property, or the property that is included in probate court proceedings, refers to property that has the deceased individual's name on it without any other names. Property that is co-owned, such as a home that is owned by both a husband and wife, will revert to the living owner. Property held in a trust is exempt from the process. Also, property deeded as "transfer on death" will transfer without going to probate. Any accounts listed as "payable on death" avoid the probate court process.

Length of Time

The length of time an estate sits in probate court depends on the complexity of the estate, the claims made against the estate and the process for the probate court in the state where the individual died. If the estate does not require an estate tax payment and has few claims made against it, it can be settled in less than a year. If the will is contested, the process can drag on for several years. When the estate is large enough to require estate taxes, the process can take more than a year. Some assets can be distributed before the probate process is complete.

The Process

When an individual dies, the executor named in the will or appointed by the state submits the will to the probate court. All heirs, beneficiaries and creditors receive notification of the probate case so they can bring any claims against the will. The executor will open a bank account in the estate's name to manage the funds during the process. The executor also oversees the distributions, tax payments and other financial matters throughout the process. Once distributions have been made and beneficiaries report no objections, the courts will create a final document summarizing the receipts and disbursements of the estate and the actions taken by the executor. This report becomes a public record and is given to the beneficiaries.

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