Probate

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

Probate in the United States

In most states, after a person residing in that state has died, his property immediately becomes the property of his spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property, tenancy in entirety, or tenancy in common.) If there is no spouse, then probate begins, whether or not the decedent has a will. 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 shepherding of the decedent's property throughout the probate process. If there is no will, or if the will does not name an executor, then the probate court will appoint one.

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 probate.

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 heirs, 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 corporation to which a person transfers ownership of his property. Upon his death, the decedent's heirs acquire control of the trust and, therefore, the property it owns. This avoids probate for the property held by the trust, and may assist in avoiding some estate taxes.

It must be noted that avoiding probate does not mean estate taxes have also been avoided.