What is Probate?

Oftentimes, people have a desire to avoid probate without really knowing what the term "probate" means.  Simply put, the term probate refers to the court procedure to transfer property from someone that died to that person's heirs.

Why is there a need for probate in the first place?  Sometimes there is no need for a probate proceeding.  Assets that are jointly owned or that have beneficiary designations oftentimes avoid the need for probate court intervention by virtue of already indicating who is the co-owner or the eventual taker.  However, if an asset is titled in the individual name of the deceased, a probate proceeding is required to effectively transfer the asset to the new owner.  When a person dies, that person can no longer sign their name or effectively tell the world who they want to own their assets.  Therefore, we need some type of court proceeding to do this.  This is where the probate court comes in.

What are the steps for a probate proceeding?  Typically, when someone passes away, the deceased's relatives contact an attorney to gather the information necessary to open a probate estate for the decedent.  If the decedent had a valid will, the terms of that documents will be followed, including who shall receive the assets and who shall serve as the executor (or personal representative). 

After a probate estate is opened, the personal representative is typically issued "letters of authority."  These letters grant the personal representative exclusive rights to handle the affairs of the decedent. 

Eventually, after the payments of debts and administrative expenses, the personal representative can distribute the remaining assets to the heirs and close out the probate proceedings.  From start to finish, the probate proceedings can last anywhere from 5 months to several years.

If you have any questions about probate, please feel free to contact our office.