When a person dies, their estate goes through a legal process that executes their will and settles all claims to the estate. This process is called probate. A probate court determines the validity of the deceased’s will, appoints an executor and representative of their estate, and mediates the interests of those with claims against the estate including any and all heirs.
General Probate Proceedings
After a person dies, his or her assets must be transferred to other parties. If there is a valid will, the assets will be distributed by the executor of the estate in accordance to the wishes of the deceased. If there is no will or the will is ruled invalid, the assets are distributed according to state law.
Prior to distribution, assets must be inventoried and accounted for. Monetary obligations, such as debts or taxes, must be settled as well. The amount of time an estate remains in probate is determined by its size, monetary obligations, and the number of disputes requiring resolution.
Types of Probate
There are several different types of probate proceedings. The value of the estate, the types of assets involved, the validity of the will, and likelihood of disputes arising are a few factors that will determine how the probate will proceed.
* Summary Administration: If all assets are found to be exempt from creditors and the value of the estate is less than the limits set by law, an estate will bypass lengthy administration. This is due to the inability of creditors to submit claims against the estate in this type of proceeding.
* Collection by Affidavit: This is a simplified proceeding where a person who is entitled to receive property may make a claim to it by filing an affidavit. This procedure is only available for estates valued at $50,000 or less.
* Determination of Descent: A court issues a decree that orders the deceased’s property to be transferred according to their will or state law. This proceeding typically occurs when the person has been dead for more than three years and probate has not been started during that time.
* Informal Probate Administration: A representative of the estate is appointed by the court and the estate is resolved in an informal manner with minimal involvement by the courts.
* Formal Probate Administration: Probate is commenced by filing a petition with the probate court and interested parties are formally notified of proceedings. This method is preferred with large estates or where the possibility of claim disputes arising is high.
