The Probate Process

Question 1

Who is a Testator? Testate?

Answer 1

Someone who has a will.

Question 2

What does “bequeath to a legatee” mean”?

Answer 2

Personal property left under a will.

Question 3

What does “devised to a devisee” mean?

Answer 3

Real estate under a will.

Question 4

Can you bequeath land?

Answer 4

No.

Question 5

What word should you use in your will to make things easier instead of traditional language?

Answer 5

Just use the word “give”

Question 6

What do you call it when someone dies without a will?

Answer 6

Dying Intestate/Intestacy

Question 7

What happens if you don’t have a will but have property?

Answer 7

Distributed to Next-of-Kin.

Question 8

What if you have real property without a will?

Answer 8

Descends to heirs.

Question 9

Are heirs and next-of-kin the same thing in modern times?

Answer 9

Yes

Question 10

What is the first thing that happens after you die?

Answer 10

Someone has to gather everything up and distribute it.

Question 11

What is probate?

Answer 11

A court-supervised process that determines the validity of the will and supervises the distribution of “stuff.” Probate assets are what can get distributed through probate.

Question 12

What is NOT probate property?

Answer 12

Most trusts, Property held in Joint Tenancy (bc there’s survivorship interest) Payable on Death accounts (bank handles this) Life insurance

Question 13

Is probate a popular option?

Answer 13

No, because it’s time consuming and slow, expensive filing fees, not private wills are public docs.

Question 14

Probate is not mandatory, so why do it?

Answer 14

Having probate puts a pause on creditors. You have to think about money in the bank, and the bank won’t give it to just anyone, probate will help figure it out. Probate likely if titles to things are involved (like real estate or finding a true owner) Probate judges can resolve debt issues and can handle family issues, and help out with malpractice claims, Dispute Resolution.

Question 15

What is small claims probate?

Answer 15

If the estate is less than a certain amount of money, rules are less strict and intense, and there’s little to no supervision.

Question 16

How does probate work with intestacy? What is the probate process?

Answer 16

If you die intestate, property is distributed according to state law. Probate is the default and court-supervised method of distributing assets in the US.

Probate Procedure 101:

Is there a will? Look for any important documents or if there is a lawyer.

File a petition for probate w/ the court (State dependent process) and attach death certificate and will.

Court will set a date to appoint a personal representative (person the court gives authority to settle the estate) no will = administrator and if there’s a will = executor

If you name an executor in your will, the court almost always respects it. Personal representative usually gets POA. Executor = Letters Testamentary. Personal Rep has legal interest in dead person’s property, and is a fiduciary, can be held liable.

Handle/Close the Estate:

Pay taxes, open estate account, appraise/inventory, formal transfer of estate property

Pay debts if they exist

Make decisions about assets

Give potential heirs notice or people named in the will, put notice of death in newspaper

Executor should be someone responsible, organized, trustworthy.

Distribute the Assets

Before that, you’ll file a settlement with the court to make sure you’ve done correct procedure with property