What is Probate Law?

Charity Delich

Probate law encompasses the legal rules that govern the accounting and distribution of a deceased person’s assets. In most jurisdictions, a court supervises the process of probate, and an executor or personal representative handles the details of the estate. Usually, an executor is responsible for ensuring that creditors and taxes are paid. In addition, the executor handles distributing estate assets to beneficiaries in accordance with the terms of the will and applicable probate law. If the deceased does not have any assets, probate is unnecessary.

A will's validity is determined by a probate court.
A will's validity is determined by a probate court.

Probate law generally applies in cases where a person has died testate, meaning that he or she has left behind a will. When someone dies testate, a probate court determines whether or not the will is valid. During this process, heirs and beneficiaries may object to the validity of the will. For example, a beneficiary may claim that the deceased was improperly influenced when making the will or that the will was forged.

A house held by trust will not have to go through probate before passing to a beneficiary.
A house held by trust will not have to go through probate before passing to a beneficiary.

Even when a deceased person dies intestate, meaning he or she has not left a will, the estate is usually subject to probate. In this case, a court may appoint a personal representative to oversee the distribution of the estate. According to probate law, the estate generally includes any property belonging to the deceased person at the time of his or her death – from retirement accounts and investments to real property, jewelry, and furniture.

During probate, a listing of the decedent’s assets is usually made. The executor or personal representative is generally charged with ensuring all assets are accounted for. For instance, the executor usually documents whether estate assets were used to pay off a creditor or whether they were given to an heir.

Probate can be a long and complex process, and the services of a probate lawyer are often required. Probate lawyers usually receive a percentage of the estate assets for their services. In general, probate documents are public records. As a result, members of the public can determine how much a deceased person’s estate is worth as well as who the estate beneficiaries are.

Under probate law in most jurisdictions, assets held in a trust are not required to go through probate because they generally belong to the trust rather than to the trustor. Once the trustor dies, the trustee is usually tasked with distributing the trust property to the trust beneficiaries. This is typically done without court supervision and can be a way to avoid paying certain inheritance taxes or probate court fees.

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