What is Probate?
Posted on 31. May, 2011 by Attorney in Probate Law
Probate Protects the Beneficiaries and the Property
Probate is a legal process that is used to transfer the title of property and goods that belonged to a person who has died to the proper beneficiaries. Beneficiaries may be the deceased’s heirs and creditors. Probate is necessary so that any outstanding debts or taxes of the deceased can be paid from the estate before it goes to the beneficiaries. The probate process will set deadlines for the creditors to file claims, so they cannot come later and make demands on the beneficiaries.
Leaving a Valid Will
If the deceased has left a valid will, it will name an executor who is someone designated to watch the probate process and make sure everything is distributed according to the instructions in the will. The executor can be a relative of the deceased or someone unrelated. The lawyer who drew up the will can help guide the executor through the legal process of probate. The lawyer’s fee will be paid from the estate.
Intestacy
If a person dies without leaving a valid will, it is called dying intestacy. If this person has no identifiable heirs, the property and goods will be assigned to the state government. The state will take care of the estate until any proper heirs can be identified. The common law of descent is followed when a person dies intestate. This means that the property first goes to the spouse, then to the children and their descendants. If there are no descendants the estate will go to the parents of the deceased then the siblings, their descendants, the grandparents, parents’ siblings and their descendants.
Part of the Estate may not enter Probate
It can take up to a year for the property of the deceased to be distributed and there will be attorney and court fees. To avoid this, it is possible to avoid probate by setting up a living trust or property passed or transferred on death. The death proceeds from a life insurance policy, a retirement or bank account that names a beneficiary and jointly owned with right of survivorship property or brokerage account do not enter probate and automatically pass to the rightful person. An irrevocable or revocable trust created during the lifetime of the deceased also does not enter probate.
This article is provided as information only and not intended as legal advice in any means or manner whatsoever, Attorney Andrew M. Lamkin provides focused legal counsel within the area of probate in Long Island, and has provided this for informational purposes only.
