Probate and How It Works

When an individual dies owning property in his or her name, that property may go through probate to determine its new ownership. Probate is a legal procedure that is used to collect the property owned by a deceased person, pay the debts of the deceased person, and distribute the remaining property to its new owner. If there is a will, the probate procedure is also designed to ensure the validity of that document. If there is no will, the probate courts distribute the property according to a legally designated procedure referred to as intestate secession. Some property does not require probate to determine ownership: joint tenancy property and contractual arrangements such as insurance policies and retirement accounts generally go directly to the surviving joint tenant or named beneficiary without passing through the probate procedure. Probate also is not required for assets held in a trust.

The probate court first establishes whether the deceased left a valid will, if so, the probate process guides the division of the property in accordance with the provisions of the will. If an estate is intestate or if the will is found to be invalid, the probate court applies state law to divide and distribute the estate. The probate court enters an order approving the final accounting of the distribution, thereby finalizing the transfer of ownership.

There are two levels of probate:

Informal probate covers estates that require little or no court supervision or adjudication due to their clear, undisputed nature and simplicity. This procedure allows the personal representative to accept full responsibility for promptly, completely, and legally distributing the property in the estate with only minimal court supervision. Typically, the personal representative can act more quickly to divide the property under this process, with the probate court giving final approval once the estate is fully distributed. Personal representatives may apply for in formal probate, but should be aware of the possible legal liability for mistakes that this acceptance of the procedure involves.

Formal probate applies to more complex or contested estates, and involves court supervision of any distribution. The probate court supervises the personal representative on each legal step he or she takes to administer the estate,. This adds substantial time to the probate process. The personal representative may be required to post a bond to guarantee his or her performance and to protect the creditors of the estate. The court may need to hear and resolve conflicting claims pertaining to estate assets, or even find heirs when they are not apparent. While this procedure takes far more time, it is indispensable when disputes and complex issues are involved.

Most personal representatives hire an attorney to help them with their duties, even in informal probate. While making a will does not prevent the need for probate, a carefully drafted will minimizes the time a personal representative will need to spend in court and can speed up the distribution of property to the heirs or beneficiaries.