What is Probate? - Probate is the process by which property is transferred from a deceased person to his or her heirs or beneficiaries. Probate occurs in the city or county where the decedent had his or her permanent legal home (domicile).
What is the process of Probate? (a) You must file with the probate court the death certificate and Original Will or you must establish that no Will exists. In many instances you must retain an attorney for this process because it is required by law or the process may be complicated. (b) The personal representative/executor named in the Will, will be appointed by the probate court or, if there is no Will, the court will appoint someone. (c) The interested parties are notified that the probate process has started. Interested parties include the decedent's beneficiaries, heirs and creditors. (d) An inventory of the decedent's property (home, car, investments, bank accounts, furniture and personal property etc.) must be filed with the probate court. Often an appraisal is advisable to ascertain the correct market value of an asset. (e) The personal representative/executor pays the decedent's funeral expenses, debts, taxes and fees related to probate. (f) The personal representative/executor distributes the remaining assets to the beneficiaries and heirs. (g) The personal representative/executor prepares a final accounting showing the probate estate's income, expenses and the distribution of assets and the court closes the probate estate. This process may be completed in little as six months or can last for several years if complications arise.
Must everything pass through Probate? – Not necessarily. It depends on how your property (home, car, investments, bank accounts, furniture and personal property etc.) is titled. If you have property titled in your name only then it must pass through probate. If the property is titled jointly with another person (both owners have a present right to that property or account) then the other person will own the property upon the death of one of the joint owners by operation of law (no probate process is necessary). However, you must realize that the joint owner can remove money from any account at any time because they are a present owner. Also, if joint ownership is used for a house you cannot not sell your house/real property without the other joint owner also signing. Additionally, all of your property may become liable for the debts of the joint owner and could be taken by the joint owner’s creditors. Lastly, if both joint owners die simultaneously the property will have to go through probate. With bank accounts you may be able to designate a beneficiary (the bank account is a “pay on death account” or an “in-trust-for account”). With POD or ITF accounts the account is transferred immediately to that person without probate. Also, if you have a fully funded Trust there is no need for probate.