what is probate?
Probate is a legal document. Receipt of probate is the first step in the legal process of directing the estate of a departed person, resolving all claims and issuing the deceased person's property under a will. A probate court also known as a surrogate court decides the legal strength of a testator’s will and grants its approval by granting probate to the executor. The probated will becomes a legal document that may be imposed by the executor in the law-courts if necessary. A probate also officially appoints the executor or personal representative, generally named in the will, as having legal power to place of the testator's possessions in the way stated in the testator's will.
A representative example of a complete probate clause, from the 14th century (or earlier) onwards, added at the bottom of the office transcribed copy of a will.
steps of probate
Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death profits of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as a such thing as payable on death, and property legally held as jointly owned with right of survivorship.
Property held in a revocable or binding trust created during the grantor's lifetime also escapes probate. In these cases in the U.S. no court action is involved and the property is dispersed privately, subject to estate taxes.
After opening the probate case with the court, the personal representative lists and collects the decedent's property. Next, he pays any debts and taxes, including estate tax in the United States, if the estate is taxable at the federal or state level. Finally, he issues the lasting property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
A party may challenge any feature of the probate administration, such as a direct challenge to the strength of the will, known as a will contest, a challenge to the status of the person serving as personal representative, a challenge as to the character of the heirs, and a challenge to whether the personal representative is properly administering the estate. Issues of paternity can be doubtful among the potential heirs in intestate estates, especially with the arrival of inexpensive DNA profiling techniques. In some situations, even natural heirs can be deprived of their inheritance rights, while non-biological heirs can be granted inheritance rights.
The personal representative must understand and stand by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not obeying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative accountable for any harm to the estate.
The Law Office of Linda C. Singer, P.A. is devoted to providing individualized legal services to our clients. We understand that every client is unique, and will work closely with you to help you understand the law and its impact on your particular circumstances.