There are life instances where death came so sudden in the family. Our grandfather, out of old-age died with a handful of properties left, but leaving no last will or any last words as to who or what to do with the property or properties they left. Now here comes another problem. When the time comes the heirs are going to transfer the ownership from the deceased loved one, they need to actually submit to a legal process known as the probate process.
FindLaw discussed the basics of the probate process, explaining thoroughly this important legal process of transferring property. Read the article below to learn more.
The Probate Basics
The legal process of transferring of property upon a person’s death is known as “probate.” Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.
Today the probate process is a court-supervised process that is designed to sort out the transfer of a person’s property at death. Property subject to the probate process is that owned by a person at death, which does not pass to others by designation or ownership (i.e. life insurance policies and “payable on death” bank accounts). A common expression you may have heard is “probating a will.” This describes the process by which a person shows the court that the decedent (the person who died) followed all legal formalities in drafting his or her will. What is often taught about the probate process is how to avoid it.
The movement to avoid probate is primarily motivated by the desire to avoid probate fees. It is, in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: joint ownership with the right of survivorship, gifts, and revocable trusts. The probate system, however, exists for the protection of all the parties involved and the focus of this article is what occurs in probate.
What Happens in Probate?
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. The basic process of probating an estate includes:
- Collecting all probate property of the decedent;
- Paying all debts, claims and taxes owed by the estate;
- Collecting all rights to income, dividends, etc.;
- Settling any disputes; and
- Distributing or transferring the remaining property to the heirs.
So technically, the probate process is the legal process of transferring ownership of property upon a person’s death. This is very important for the process also shows that the decedent has followed all the legal formalities in drafting his or her will. But in some instances, does the probate process always necessary? Here’s an explanation was written by Free Advice Legal about the necessity of the probate process.
Is Probate Necessary?
Whether probate is necessary depends on what property the decedent owned and how it was held, and on the law of state in which the decedent died and the laws of any states where the decedent held property.
In general, the probate process clarifies issues in a will and resolves any challenges to the distribution of funds of an estate. The type of probate needed depends on the size of an estate. Generally, it is necessary to go through probate or, in the case of smaller estates a less formal procedure under the general supervision of the probate court, before the deceased’s property can be legally distributed. Without probate of a will, complicated legal issues can arise.
Probate Is Necessary Even with a Will
The first major issue to be resolved through the probate process is the clarification of title for the property of an estate. Even if there was a will, all of the property owned by the deceased at the time of death is part of the estate and is subject to probate including bank accounts, CD accounts, pension accounts, and the deceased’s personal property, like jewelry, furniture, and artwork. Probate not only distributes property, but also results in a legal transfer of title to that property. For example, a family member, such as an aunt, passes away and leaves her home to a nephew, the probate court can order the issuance of a title put in the nephew’s name, who can then legally manage the property. However, until the will is probated, that title is potentially clouded as it has not been legally transferred.
Common Reasons Probate Is Necessary
If there was no will, probate is necessary to determine the beneficiaries and to distribute the decedent’s assets and title to property.
A valid will exists. As discussed above, in order for the assets of an estate (excluding some smaller estates) to be properly distributed to the named beneficiaries, a valid will must go through probate. See full post here…
Now we know the importance of the probate process that’s why it is a necessary legal process. It is also crucial to determine the heirs and to distribute the decedent’s assets as well as the title to the property. Especially when there’s no will, the probate process is of utmost importance during this kind of situation.
Also, you already established the necessity of the probate process in cases where the last will is not present, next thing you must know is the probate process timeline. How long does an average probate process would take? Check out this article written by Inheritance Funding on the average timeline on the probate process.
Understanding The Probate Process Timeline
If you find yourself asking about the length of the probate process from start to finish, sit down and buckle up because unfortunately the process is an unpredictable and lengthy legal procedure. The length of the probate process timeline depends on several factors.
For example, the size of the decedent’s estate and level of complexity, whether or not the decedent left behind a will and if it’s contested, outstanding debts and obligations, and the number of proposed heirs can all add several months or years to the procedure.
Other factors may include tax complications, non-probate lawsuits, and probate procedural requirements. It’s important to note that procedural requirements regarding probate vary by state. Additionally, the majority of courts have local court rules. It is a good idea to research probate law and various probate attorneys ahead of time. Researching probate will facilitate an understanding of various state requirements, local court rules, and key probate terms.
In turn, this will help you understand what is involved for the probate process. Another benefit of researching probate law and contacting a probate attorney regarding the process details of probate is that you will be able to determine a timeline tailored to the specific circumstances of your probate matter.
Check out our Probate Timeline chart below. The time estimates will not apply in every situation since specifics of the probate process differ with every estate, however our probate timeline can act as a reference tool for approximating how long your probate process may take and how long it may be until you can access your inheritance. If you are currently involved in probate, you may be able to identify which stage of the probate process you are in by reviewing the timeline below.
Probate Process Timeline (24 Month Period)
Understanding the Inheritance Process
To understand why the probate process can take so long to complete, one should understand the fundamentals of the probate timeline. The probate process begins after someone dies. The person who died (the decedent) may have died testate (with a will) or intestate (without a will). Read the entire article here…
The probate process is the legal remedy to recover property of a decedent. This process is supposed to protect the beneficiaries to claim the property left to them by their dead loved ones. That’s why it is vital to know not just the basics of the probate, but also its importance and its timeline. That way it is much easier for you to submit to the process and complete them within the timeline.
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