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Wills and Probate
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What Is Probate and The Probate Process

What Is Probate and The Probate Process

Probate is defined as the court-supervised legal process in which title to a decedent's estate is transferred to the decedent's beneficiaries. A decedent's family members are the parties who present the decedent's will to the probate court to begin the probate process. The decisions made during the probate process typically entail determining a will's validity; gathering and marshaling estate assets; paying debts, claims, taxes, costs and expenses associated with administration of the will; and distributing remaining assets, if any, to estate beneficiaries designated for such receipt in the will. The probate court is tasked with oversight responsibilities during the probate process.

Probate process costs

The probate process is not without costs. The cost of the probate process is usually determined by state law or by the customary practice of the locality absent controlling laws. The average costs associated with probating an estate ranges from 3 percent to 7 percent of the estate's total value. Beyond the monetary costs of probate, time costs are required also. There is a further cost associated with lost privacy for the decedent for his finances and personal business.

Probate process advantages

Probate is considered a worthwhile process because of the benefit of the probate court's supervision over estate administration and proceedings. There is a measure of reassurance associated with probate laws and having guidelines in place to create order. This benefit is particularly important in situations when creditors make competing claims, a party raises a will challenge or a dispute arises over a provision in a will.

Testate succession

If a decedent dies with a will, he died testate. It is the duty of the probate court to determine whether the decedent's will is valid, to hear any will objections, to direct that estate creditors are paid and to supervise the probate process so property is distributed pursuant to the will instructions. In a testate succession scenario, the estate is distributed pursuant to the instructions of the decedent herself in her will, after payment of debts, taxes and costs of estate administration are resolved.

Intestate succession

If a decedent dies without a will, then she died intestate. In intestate succession cases, the probate court must appoint a person to receive all claims made against the estate, to pay creditors and to distribute any remaining property pursuant to the laws of the governing jurisdiction. In intestate succession, a decedent's estate is transferred to her beneficiaries pursuant to scheme set forth under state laws regarding estate distribution.