Probate is the process that transfers legal title of property from the estate of the person who has died (the “decedent”) to their proper beneficiaries.
The term “probate” refers to a “proving” of the existence of a valid Will, or determining and “proving” who one’s legal heirs are if there is no Will. Since the deceased can’t take it with them, probate is the process used to determine who gets their property
Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.
Probate is not cheap or quick. Because probate requires a hearing in over-burdened courts, the process can tie up property for a year or more. In addition, probate may be expensive. Estate attorneys, who sometimes charge a flat percentage or a high hourly rate, usually handle probate. Their fees and court costs may cost 5% of the estate’s value. A will is a very personal document, and may reveal private family and financial issues and concerns. But once it is entered into the court record, it becomes public, and can be inspected by anyone.
Why is Probate Necessary?
The primary function of probate is transferring title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
Another function of probate is to provide for the collection of any taxes due by reason of the deceased’s death or on the transfer of their property.
The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
Who is responsible for handling probate?
In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process — most often the closest capable relative, or the person who inherits the bulk of the deceased person’s assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.