U nderstanding P robate :
the basics
By Jimalee Splawn
Are there different types of probate administrations?
Most probate cases are handled as independent
administrations if the will provides for that process or if
all beneficiaries or heirs agree. The independent admin-
istration is quicker and less expensive as there is limited
court involvement because the independent executor/
administrator acts, for the most part, independently of
the court.
A dependent administration is a court supervised
administration. The executor in a dependent adminis-
tration must get approval from the court for all actions.
This makes a dependent administration more expensive
and burdensome. A dependent administration might
be preferable however, if there are creditor problems,
feuding beneficiaries or heirs, or difficult assets. In
limited circumstances, probate options without admin-
istration are available.
If you have questions involving wills, estates, or
probate matters, you should seek the advice of an attor-
ney who is experienced and skilled in such matters.
This article is for informational purposes only and not for the
purpose of providing legal advice. You should contact an
attorney to obtain advice with respect to a particular probate
issue.
Jimalee Splawn is an attorney with Harris, Finley & Bogle, P.C.
She began her practice in 2006 and focuses on estate planning and
probate matters.
When is probate necessary?
If a decedent owned any property evidenced
by title in his or her name at death, then in most
cases probate will be required. The property
cannot be sold or transferred to the beneficiaries
or heirs until the decedent’s name is removed from
the title. Probate records become a link in the
chain of title, demonstrating that the decedent’s
property has passed to someone else. The assets
that pass pursuant
to a decedent’s
will, or pursuant to
state law if a dece-
dent did not have
a will, are called
testamentary assets.
If all of the
decedent’s assets were non-testamentary in nature, a
probate proceeding may not be necessary. For exam-
ple, many assets such as life insurance proceeds, IRAs,
pension plans and retirement accounts pass outside
the will to beneficiaries named by the decedent.
Additionally, property held by the decedent and others
as joint tenants with rights of survivorship, such as bank
accounts and certificates of deposit, pass outside the
will directly to the survivor. Finally, property held in
trust will pass under the terms of the trust rather than
the terms of the decedent’s will.
What is probate?
When a person dies (“decedent”), his or her
estate may need to go through probate. Probate
is the legal process wherein the estate of a dece-
dent is administered through a judicial process. A
decedent’s estate is the real and personal property
that an individual owns at his or her death. If the
decedent left a last will and testament directing
how his or her property should be distributed after
death (the decedent died “testate”), the probate
court must determine whether the will is valid
and if it should be given legal effect. If the valid-
ity of the will is successfully proven, the person
named under the will to administer the decedent’s
estate (the “executor”) will be legally appointed to
administer the estate. A will must be admitted to
probate before a court will allow the distribution
of property to the beneficiaries according to its
terms. Generally, the original will is required for
probate.
If a person dies without leaving a will (or a
valid will), and the decedent’s estate needs to be
administered, the probate court will appoint an
“administrator” to administer the estate and ulti-
mately distribute the decedent’s property to the
decedent’s heirs. The heirs are determined accord-
ing to the state’s descent and distribution statutes
through the judicial process.
Generally, probate proceedings must be
commenced within four years following the death
of the decedent. Probate proceedings are handled
in the probate court or county court of the county
of the decedent’s residence.
In general, the probate process involves collect-
ing the decedent’s assets, liquidating liabilities,
paying necessary taxes, and distributing the dece-
dent’s remaining property to the decedent’s benefi-
ciaries or heirs.
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