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Probate

Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the deceased person’s property. The phrase “going thorugh probate” refers to this legal process.

In some states, after a person residing in that state has died without a valid will or trust, his or her property immediately becomes the property of the spouse, if any, without the need for probate. (This is the case in states that recognize a married couple's property as community property, such as California, or as tenancy by the entireties.) However, in cases where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had a valid will. A court having jurisdiction of the decedent's estate (often called a "probate court") supervises probate, in order to ensure the decedent's property is distributed according to the direction of his will and the laws of the state.

The will usually names an executor, a person who must carry out the instructions laid out in the will. The executor's most common task is to marshall all of the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the probate or other court having jurisdiction of the decedent's estate can appoint one.

Probate generally lasts several months, occasionally over a year before all the property can be distributed. The probate process can incur substantial court and attorney costs. One of the many ways to avoid probate is to execute a living trust.

Throughout the probate process, there may be disputes. Anyone may make a claim on the estate, either by petitioning the personal representative or the court. If the claim is rejected, the claimant may file a lawsuit to attempt to prove the claim and collect money. Any dispute generally causes the court to treat the probate more formally, and it may reach the point where the court must approve every transfer of every piece of property.

For these reason, the guidance of an experienced attorney can be very helpful both during the probate process, as well as before. If you are an executor or a beneficiary of a will and have questions about your legal rights and obligations, please call The Law Offices of Michael P. Sousa at 858-453-6122 for a free consultaton. Moreover, to avoid probate, you may consider establishing a trust.