Probate is the legal process through which property is transferred when a person dies. While there have been changes in probate laws over the years, and though some probate laws vary state to state, the purpose of probate remains constant: for individuals to clarify and formalize their intentions for the distribution of their property after their death. This is typically accomplished with a will.
Elements of Probate
Probating a will describes the process by which the court is shown that the decedent followed all legal formalities in drafting his or her will. The elements of the legal process called probate include:
- Proving in court that the decedent's will is valid
- Collecting and creating an inventory of the decedent's property
- Having the property appraised
- Collecting all rights to income, dividends, etc. due to the estate
- Paying debts and taxes owed by the estate
- Settling any disputes
- Distributing the remaining property to heirs as the will directs
The court-supervised process of probate administration has been developed to deal with the transfer of a person's property at death. It does not involve life insurance policies or "payable upon death" bank accounts, but focuses on property owned by the decedent that does not automatically pass to the inheritor through ownership.
Normally, the decedent has appointed an executor to manage affairs after his or her death. In cases in which the decedent has failed to designate an executor, the court will appoint an administrator to settle the estate. If the decedent has not left a will, state law will determine distribution of property.
Because the probate process is court-supervised, involving paperwork and court appearances by attorneys, costs are involved, including court costs, attorney fees, and, possibly, a designated personal representative of the decedent. Many people try to avoid the probate process to preserve estate money that would otherwise go to specified heirs. It is not difficult to avoid the probate process; there are three primary means of accomplishing this:
- Joint ownership of real property with the right of survivorship
- Gifts to designated parties before death
- Revocable trusts
Contested and Uncontested Wills
Most often, when wills are contested the action is initiated by a dissatisfied, or would-be, heir who is seeking an inheritance, or a larger share of the estate than the will has designated. Common arguments in contested wills include:
- Improper influence upon the decedent to make large gifts prior to death
- Diminished mental capacity of the decedent at the time the will was executed
- Improper drafting of the will, meaning legal formalities were not followed
While the tremendous media attention that surrounds contested wills among the rich and famous may make contested wills seem commonplace, most probated estates are not contested. In the vast majority of cases, the decedent's wishes are validated and the designated heirs inherit the amount the decedent intended.
In a few cases, however, depending upon particular circumstances, the court may decide that, for example, a spouse has been mistakenly kept from inheriting a fair share of the estate in question, or that certain creditors must be paid what they are owed. As with all financial matters, the larger the estate in question, the more likely there are to be time-consuming complications.
In order to avoid the expense and possible entanglements of probate, consult with one of the skilled estate planning attorneys at Chandler, Mathis & Zivley.