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Probate and Estate Administration

Probate is the legal process of proving that a will is valid. Estate administration is the legal process where assets, real estate, and personal property are transferred after a person's death.

Both of these legal proceedings occur in probate court after someone's death. The deceased person is legally referred to as “the decedent." Probate court proceedings ensure the decedent's debts, affairs, and assets are properly handled.

Considering probate court proceedings is a standard part of estate planning for your estate assets.

Estate Administration Basics: Where Does My Property Go?

Estate administration is a court-supervised process designed to sort out the transfer of a person's property after death. Your personal representative will handle this process from beginning to end as a part of their overall estate administration duties. Tasks can include collecting, managing, and distributing the decedent's estate.

Some property passes automatically to another party upon death, such as family members in a joint bank account. The court will examine other property subject to the estate and grant it to the appropriate party.

Some assets in a decedent's property may need special considerations before passing to a loved one or being used to pay off debts or estate taxes.

Probate: The Process When You Have a Will

You may have heard of "probating a will." This refers to a will presented to the court that fulfills the legal requirements to be upheld as valid.

The court then considers the directions written in the will. If nothing is illegal or overridden by other laws, the court divides the property according to the deceased's wishes.

Probate Process When The Will Is Contested

Probate may be contested or uncontested. There may be a disgruntled person seeking a larger share in contested probate.

In these situations, legal and factual arguments are introduced to support or undermine the claims of various parties.

Probate Process When The Will Is Not Contested

The probate of most estates is uncontested, however. In these cases the property is collected, debts and taxes are paid, disputes are settled, and the remainder of the estate is transferred to the heirs.

Estate Administration Process When You Don't Have a Will

Passing away without a will is called being “intestate." The process and estate assets may be more complex without a valid will following the decedent's death.

Avoiding Probate Court: Common Methods

Probate court proceedings are often criticized as being costly and time-consuming. Avoiding probate court can ensure that beneficiaries receive their benefits more quickly and less is lost to administrative and other expenses.

As a result, many methods have been developed to try to avoid probate court, such as:

Certain trusts, life insurance policies, and "Totten Trusts" (also called "payable-on-death" accounts) are also capable of avoiding probate. This is done by transferring ownership to the beneficiary before death or automatically upon the creator's death.

Each of these processes has benefits and drawbacks. After learning the basics, it is advisable to research more closely. This helps avoid creating new problems while trying to avoid probate court problems.

Avoiding Probate Court: Joint Property Ownership and Death Beneficiaries

Jointly owned property that includes a "right of survivorship" can avoid probate court proceedings. This works because the deceased joint owner no longer owns the property after death, leaving only the surviving owner. This can also be called “joint tenancy."

Assets that permit you to designate a beneficiary upon death are called “death benefits." They may also avoid estate administration.

Avoiding Probate Court: Revocable Living Trust

Revocable living trusts function similarly to joint property ownership. Upon death, the property automatically transfers to the beneficiary. This means that it isn't the deceased's property when estate administration occurs.

Avoiding Probate Court: Gifts

Making a gift of something before death will also allow the gifted property to avoid estate administration. The deceased person no longer owns the property they gave away.

Avoiding Probate Court: Small Estate Affidavit

Some small estates can use a signed legal statement called an “affidavit." This document swears a person can inherit a property item or asset. It does depend on your specific state laws, but a sworn affidavit can help a small estate avoid going to probate court.

Avoiding Probate Court: Probate Exemptions

Probate Court may be avoided through the use of a probate exemption. Exemptions allow for probate avoidance or a simplified estate administration process for smaller estates. In some states, probate court proceedings are eliminated or simplified for property left to the surviving spouse.

When To Call a Probate Attorney

Probate can feel confusing and larger or more complex estates can be overwhelming. You can always seek legal advice or ask in-depth questions about probate code in your state and overall probate laws. Finding a local attorney that focuses on probate is a good first step, and they may offer your first phone call for free.

You Don’t Have To Solve This on Your Own – Get a Lawyer’s Help

Meeting with a lawyer can help you understand your options and how to best protect your rights. Visit our attorney directory to find a lawyer near you who can help.

Or contact an attorney near you:

Can I Solve This on My Own or Do I Need an Attorney?

  • Complex probate situations usually require a lawyer
  • A lawyer will take these matters seriously and enforce protections
  • Get tailored advice and ask your legal questions
  • Many attorneys offer free consultations


 If you need an attorney, browse our directory now.

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