Although probate customs and laws have changed since the era of the Roman Empire, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death, typically in a will. The probate process governs the distribution of property according to the dead person’s wishes.
Today the probate process is a court-supervised process to sort the transfer of a person’s property at death. Property subject to the probate process is property owned by a person at death, which does not pass to others by designation or ownership (legal title). A common expression you may have heard is “probating a will.” what is often taught about the process is how to avoid probate fees.
It is in fact, quite possible to avoid the probate process completely. There are three primary ways to avoid probate and its protections: (i) joint ownership with the right of survivorship, (ii) gifts, and (iii) revocable trust. The probate system, however, exists for the protection of all the parties involved. The focus of this article is on what happens in probate.
The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than received. In most cases, arguments often include; the decedent may have been improperly influenced in making gifts, the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed, and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates however are uncontested.
The basic process of probating an estate includes:
- Collecting all probate property of the decedent.
- Paying all debts, claims, and taxes owed by the estate;
- Collecting all rights to income, dividends, etc.;
- Settling any disputes; and,
- Distributing or transferring the remaining property to heirs. Or transferring the remaining property to heirs.
