What is Probate?

Probate is the legal process of settling a dead person's
estate: specifically, distributing the decedent's property.

In some states, after a person residing in that state has
died, his or her property immediately becomes the
property of the spouse, if any, without the need for
probate. (This is the case in states that recognize a
married couple's property as community property or as
tenancy by the entireties.) However, in cases where the
surviving spouse does not automatically succeed to the
decedent's property, then it is usually necessary to
"probate the estate", whether or not the decedent had a
valid will. A court having jurisdiction of the decedent's
estate (often called a "probate court") supervises
probate, in order to ensure the decedent's property is
distributed according to the direction of his will and the
laws of the state.

The will usually names an executor, a person tasked with
carrying out the instructions laid out in the will. The
executor's most common task is the marshaling of the
decedent's assets throughout the probate process. If
there is no will, or if the will does not name an executor,
then the probate or other court having jurisdiction of the
decedent's estate can appoint one. Traditionally, the
representative of an in testate estate is called an
administrator. The representative of a testate estate who
is someone other than the executor named in the will is
an administrator with the will annexed, or administrator
c.t.a. (from the Latin cum testamento annexo).

Steps of probate

Some of the decedent's property may never enter
probate because it passes to another person
contractually, such as an insurance policy or bank
account that names a beneficiary or is owned as "payable
on death", and property (usually, again, a bank account)
legally held as "jointly owned with right of survivorship".
Property held in a living trust also avoids probate. In
these cases, the executor provides documentation to the
court, and the property is prevented from entering

The first task of the executor after opening the probate
case with the court is to inventory and collect the
decedent's property.

Next, the executor pays any debts and taxes.

Finally, the executor distributes the remaining property to
the decedent's beneficiaries, either as instructed in the
will, or per the intestacy laws of the state.

Throughout this process there may be disputes. Anyone
may make a claim on the estate, either by petitioning the
executor or the court. If the claim is rejected, the claimant
may file a civil lawsuit to attempt to prove the claim and
collect money. Any dispute generally causes the court to
treat the probate more formally, and it may reach the point
where the court must approve every transfer of every
piece of property.

Avoiding probate

Probate generally lasts a number of months, occasionally
over a year before all the property can be distributed, and
may involve costs to hire attorneys, so some people
attempt to avoid probate, most commonly by means of a
living trust. This is technically a separate legal entity to
which a person transfers ownership of his property. Upon
their death, the decedent's heir/heiresses acquire control
of the trust and, therefore, the property it owns. This
avoids probate for the property held by the trust, may
assist in avoiding some estate taxes, and maintains
privacy. The probate process is public and records can
be examined by anyone wishing to do so.

It must be noted that avoiding probate itself does not
directly mean estate taxes Have also been avoided, as
the laws imposing the federal estate tax Have been
modified to include within the definition of the person's
taxable estate, property held in a living trust, life
insurance, "payable on death" financial instruments, and
most other property which is transferred from a dead
person to a living person in consequence of the death.
Intervivos trusts can reduce estate taxes if They are
properly structured, but that is not related to the
avoidance of probate.
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