The Basics of Probate Law

After a person dies, his or her estate must undergo probate, which is the legal process by which a Will is substantiated as authentic. The purpose of probate is to determine the allocation of the deceased person’s estate. This legal process is overseen by a probate court either where the person passed away or where the person who has passed owned property and other assets.

There are two types of probate procedures that determine how the estate of a decedent is allocated and distributed among family, friends, and charities. Intestate probate procedures are enforced if the deceased did not leave a Will, and testate probate procedures are followed if the decedent left a Will.

Testate Process

If the deceased left a Will outlining how his or her property should be distributed after death, the appropriate probate court will determine if the Will’s directives should be followed. Generally, a Will has no legal authority until it has been validated by a probate court. A Will is a serious legal document that must be produced immediately after a person has passed away by whoever has possession of it.

There are various legal ramifications for concealing, destroying, or failing to reveal the existence of a Will within the required time period. While each state has specific probate statutes in place, each state follows general probate laws.

First, the person in possession of the Will is required to file it with the clerk of the probate court in the county where the decedent resided, along with a petition to have the court approve the Will. This process costs a fee, which varies from state to state. If the court decides that the Will is valid, the court then “admits” the Will as enforceable and appoints the person named as executor in the Will in charge of distributing the estate.

There are rare cases in which a Will is contested. There are four legal reasons that are grounds for filling out a petition to contest a Will. These reasons are difficult and costly to prove.

Intestate Process

If a person dies without leaving a Will, an assigned probate court representative will provide a list of blood relatives who are qualified to accept the position, and then select someone from the list as executor according to the laws of Descent and Distribution. Most states appoint spouses and registered domestic partners as the first choice. Next in line would be children of the deceased then other blood relatives.

In cases that no relatives are found to take the role of executor, the state will take possession of the deceased’s assets. Intestate succession laws vary from state to state: some of the most common intestate probate disputes stem from a person trying to qualify as the surviving spouse, receiving benefits if the deceased had begun divorce proceedings, proving common-law marriage, seeking recognition as a same-sex spouse, establishing the rights of legally adopted children, and defining the relationship of step-children and half-siblings.

In many states, to inherit the assets of a deceased relative or spouse under intestate probate law, the heir is required to have lived 120 hours or five days longer than the deceased person.

Other Probate Law Practice Areas:

  • Affidavits to Effectuate Transfer After a Death
  • Probate Estates
    • Full Administration
    • Summary Administration
    • Relief from Administration
    • Real Estate Only Estates