When an individual dies, their property and estate may be subject to probate law. This is true whether they made a will (testate) or not (intestate), and it depends on their financial situation.
For example, probate law will apply if the individual had assets with beneficiary designations or transferred their property into a trust. This article presents a guide to probate law, discussing what it is, how it works, and when it is required.
Probate Law: What It Is
Probate, in law, is that law that applies to the sharing of a person’s property when they die. It is the legal process of sharing or distributing the individual’s property to relevant beneficiaries under a court’s supervision. Also, it is an inheritance procedure preceding the distribution of property (for someone who died without a will) or execution of a will.
The sharing process usually involves an executor, a personal representative appointed by the court. The representative or administrator will organize the deceased assets, pay taxes and other debts, and distribute the rest appropriately.
When Does Probate Law Not Apply
Probate law does not affect assets jointly owned, placed in a trust, or held in accounts with beneficiary designations. It does not apply because the deceased are already named beneficiaries; the assets automatically go to them.
Also, one can avoid probate if the estate is small, but that depends on the state’s probate laws. Rather than probate law applying here, the court oversees the transfer of the assets to beneficiaries using an affidavit. However, it depends on what the state considers a “small estate:” the specifications differ from one state to another.
How Does Probate Law Work?
When property owners die, heirs do not immediately inherit the property; probate kicks in instead. Probate can last thirty to ninety days following the testator’s death, depending on the state’s laws.
● When There Is a Will
More often than not, the person chosen as the executor in the will files the will after the testator dies. After filing the will, the court will validate it and appoint an executor (or personal representative) to begin sharing.
Once the court authorizes the executor to start administering, the representative will locate the property and appraise its value. Next, they will pay the estate taxes and other outstanding debts.
The executor will file for final distribution once they finish the tasks the court assigned. Then, the judge will convene the second and last probate hearing to determine if they are satisfied. If the executor’s execution of all the responsibilities satisfies the judge, they will sign the distribution order after closing the estate.
● When There Is No Will
If the deceased did not write a will, the estate becomes intestate. Since the deceased did not name an administrator, the court will appoint one, and they will distribute the assets to legal heirs. The administrator’s job is to locate and contact the beneficiaries, such as the surviving spouse, children, or family members.
Once located and contacted, the beneficiaries must come forward to claim the property. Failure to come forward and claim means they are passing the estate to the state; it becomes state property.
Conclusion: When Probate Is Required
“The necessity of probate law depends on the value of an estate. If the estate’s value meets or falls below the state’s specified limits, the court may not require probate proceedings. Because specifics can vary, it’s advisable to seek legal advice for accurate information tailored to your situation and jurisdiction,” says probate attorney Samah T. Abukhodeir of The Florida Probate & Family Law Firm. If you do not know what probate laws apply in your state, seeking guidance from a legal counsel can be a resourceful option.
