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What is Probate?

Updated: May 7

Most of us have heard the word probate at one point or another, but what is it?

We never want to see someone having to deal with probate. It’s undoubtedly a trying time, but probate is often required for the transfer of assets. We want to help make complex legal processes easy to understand.

Today, we're breaking down probate. Here's what probate is and a brief overview of how it works.

Probate: In Simple Terms

Simply put, probate is the process of identifying the assets and debts of a person that has passed. Once identified, debts are addressed and remaining assets get officially transferred to beneficiaries.

It might sound simple, but it can get complicated depending on whether the decedent passed away with or without a will, the type of assets they had, and the amount those assets were worth.

What Assets Get Distributed Through Probate?

During probate, anything that does not have a documented beneficiary gets distributed by a probate court.

In addition, many items — such as real estate — usually need to go through a probate court regardless. This process is to officially transfer ownership even if someone else is listed on the deed.

The court determines who get assets such as:

  • Real Estate

  • Vehicle(s)

  • Cash

  • Intellectual Property (trademarks, patents, and copyrights)

  • Investments

  • Personal Possessions (jewelry, clothes, and household items)

What is the Purpose of Probate?

The purpose of probate is to ensure the assets left behind after a person’s passing are appropriately transferred to beneficiaries.

Probate allows for an accurate paper trail of assets. It also ensures all debts of the decedent are taken care of accordingly.

When is Probate Required?

Probate is required when a person passes away without a will or a trust, and their remaining assets are in their name only.

More often than not, at least some items need to be distributed through probate or transferred to the appropriate party even if the decedent had a will.

Probate is not always necessary if assets were jointly owned. This includes, but is not limited to, cars, real estate, and joint bank accounts. There are certain instances, however, when a probate court must verify asset transfer to the remaining owner(s).

How Are Assets Allocated During Probate?

When a person passes without clear designation of assets, you may wonder, “who will inherit their intellectual property”, “who gets their jewelry”, or “what happens to their bank account”. The answer is: it depends.

If a person does not document someone as their beneficiary — or explicitly exclude someone — assets are designated to next of kin.

The definition of next of kin can vary by state, but this is generally the order of priority:

  1. First in line is the decedent's spouse

  2. If the person was widowed or divorced, their children are the beneficiaries

  3. If neither of these instances applies, parents are next in line

  4. Next are siblings, if parents are deceased

  5. Priority continues to get farther out into the branches of the family tree with cousins, nieces, nephews, aunts, and so on

This is why proper estate planning is crucial — if you have certain assets you want to go to specific people, it needs to be documented. You can do this by putting them into a will, designating them a trust or beneficiary, or listing them on a deed or bank account.

Do I Have to Hire a Probate Lawyer?

You are not required to hire a probate lawyer, but it will make the probate process go much smoother and quicker.

Probate can take anywhere from six months to a year, and it's a complex process that requires a lot of attention to detail. Our experienced probate lawyer will make sure all documents are filled out as needed for assets to be distributed promptly.

Do You Need Help With Probate?

You have enough to deal with and shouldn’t have to take on probate alone. Our experienced team and probate attorney are here to help you every step of the way. Contact us today.

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