Probate, Estate Planning, Wills, & Trusts
• Estate Planning
• Living Wills
• Estate Administration
• Powers of Attorney
Probate is the legal process of administering the estate of a deceased person by resolving all claims and distributing the deceased person's property under a valid will. A surrogate court decides the validity of a testator's will. A probate interprets the instructions of the deceased, decides the executor as the personal representative of the estate, and adjudicates the interests of heirs and other parties who may have claims against the estate.
Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy insuring the decedent 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 personal representative provides documentation to the court, and the property is prevented from entering probate.
After opening the probate case with the court, the personal representative inventories and collects the decedent's property. Next, he pays any debts and taxes. Finally, he distributes the remaining property to the beneficiaries, either as instructed in the will, or under the intestacy laws of the state.
A party may challenge the probate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to prove the claim. Such challenge may force the court to scrutinize the probate in further detail.
The personal representative must understand and abide by the fiduciary duties, such as a duty to keep money in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.