Probate can be defined as the right to deal with the estate of a deceased individual. There is a slight difference in the approach depending on whether the deceased has left a will or not but in general terms the process is the same. During a probate, the court determines whether the will is authentic and legal and appoints an executor, usually named in the will, to administer the estate of the deceased person. If there is no will, the court appoints an administrator, who performs the same functions and the estate is divided between the successors in accordance with the law.
Even though probate can be a lengthy process, it generally consists of five main steps:
When a person dies, the custodian of the will takes it to the probate court or to the executor of the will within 30 days. Then the court determines the validity of the will and that it is in fact, the last testament of the deceased. The court also officially appoints the executor named in the will who then has to administer the estate. The executor has to locate all the assets of the deceased and estimate their value. After that, they need to pay all debt and taxes owed by the deceased and file their final income tax return.
Once these are done, the court will give authorization to the executor to distribute the assets left according to the will of the deceased.
If a person has died without leaving a will or if the court has determined that the will is invalid, it is said that the person has died intestate. In this case, the assets of the person will be distributed according to the state law. The first thing the court does is appoint an administrator to tackle the case. That person needs to locate all legal heirs of the deceased and the probate court will assess how the assets will be distributed among them. Usually, hierarchy starts with the surviving spouse and then the children. If no legal heir can be located, the estate of the deceased remains the property of the state.
There are lawyers who specialize in probate (search for a Probate Lawyer here). It is important to check if probate is required after the death of an individual. Different states have different requirements but in general, probate is not required if the value of the estate is below a certain amount. The amount also differs between the different states so you may need to consult a lawyer to make sure that you are proceeding in the right way.
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