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Probate: What is it, Where Does it Happen?

June 6th, 2008 · No Comments

Probate is a legal process involving the property of someone who has died. The probate process determines who will inherit the decedents property and it occurs whether a person dies with a will (testate) or without a will (intestate). Probate is necessary even with the existence of a will because a court needs to confirm that the will is legally valid before any property is transferred. Generally, one person is appointed to manage the probate process. If the person was named in the decedent’s will, they are called an executor or executrix. If there was no will, than the individual who manages the process is called the administrator or administratix. Managing the probate process can be an enormous responsibility, and as such, the executor/executrix is usually entitled to a payment of all expenses and 2% of the estate’s value.

Whether a large or small estate is involved does not effect the necessity of having a probate proceeding. However, if a decedent has no property, probate usually is not necessary, as the entire purpose is mainly to transfer title of property to the heirs or beneficiaries. Another purpose of probate is that it allows for the collection of taxes on any property transfers and for the payment of outstanding debts. Although having to sit through a court process can be a difficult task after a loved one has died, going through the probate process can actually be a great way to ensure that the heirs will not be hounded by any creditors in the future. During probate, a deadline can be set for debt repayment. Thus, after the deadline has expired, creditors can no longer go after the heirs for unpaid debts of the property.

It is important to note that the probate process may not be necessary in every situation. Depending on the laws of the state, if a married person dies without a will, probate is unnecessary, as the property will automatically become the spouse’s property. Likewise, property that is owned jointly will automatically pass to the co-owner without the need of probate. Life insurance policies, IRAs, 401Ks, and trusts with named beneficiaries also transfer property and assets automatically without requiring the probate process.

Probate cases can generally be found in a lower court in the county where the decedent lived. Depending on the state, this court could be called a Superior Court, District Court, or County Court. However, these courts may also have a separate division to handle probate matters. The division could be referred to as a Probate Court, Family Court, or Surrogate Court. For a complete list of where to find probate court cases in every state, visit Courtreference.com.

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