Probate: How Does It Work?

estate planning lawyerProbate refers to a court supervised system that is set up to insure that wills presented are authentic, not obtained under fraud or duress, and properly prepared and executed. The property inherited through a will is subject to the probate process.

There are other types of property that pass outside of a will. These assets are referred to as testamentary substitutes. Examples of these assets are joint bank accounts, annuities, life insurance, pensions and 401(k)s (provided they have beneficiary designations).

Probating a Will

Probating a will deals with the process by which a will is shown to the court and reviewed by the court for being properly executed and being considered valid to control the distribution of the assets contained in the will.

Avoiding Probate

Probate can be avoided. The primary methods of avoiding the probate process is by making gifts during your lifetime, putting your assets in trusts that avoid the probate process, or having assets subject to the right of survivorship.

Contesting Probate

During the course of the probate process, individuals who are blood relatives are notified that a will is being probated. In cases where blood relatives feel that they have been disinherited without just cause or reason, they can retain counsel to challenge the probate process and investigate the circumstances and events surrounding the preparation and execution of the will.

The Executor

A will names a person to handle the final funeral arrangements, and distribute the assets pursuant to the terms of the will. This individual is referred to as an executor.

Distribution of Assets

After a will is probated, the executor’s responsibility is to find all the assets, obtain them, put them into an estate account and thereafter distribute them. However, assets cannot be distributed for the first seven months after the will is probated. The purpose of this is to give creditors sufficient time to file their claims against the estate.

Questions About Probate?

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