Probate is the legal process of distributing a deceased person’s assets without a valid will. The probate court appoints an executor, who notifies creditors and relatives. Taxes and debts are paid first, then the heirs receive the balance of the estate. Intestate laws determine how property is allocated based on the relationship of the heir to the deceased. An invalid will can also result in probate proceedings. Estate planners often help clients avoid probate by using alternative legal tools, such as trusts.
Probate occurs when the deceased dies without a valid will or testament. Inheritance enters probate and the laws of the jurisdiction determine how personal and immovable property is distributed to the heirs. Individuals who want to control how their assets are disbursed are often encouraged to draw up a will or seek the help of an estate planning attorney. Probate law often relies on the behaviors of the average resident in relation to the transfer of property, which may not reflect the wishes of the deceased. For this reason, many estate planners often help clients avoid probate altogether by using alternative legal tools, such as trusts.
When a deceased dies without a will, a probate court judge will appoint an executor. Part of the probate proceeding requires the executor to notify creditors and all relatives of the death and that the matter is in probate. According to many local laws, taxes and creditors are paid first, then the heirs receive the balance of the estate. When there is no will, as in cases where the deceased dies intestate, the judge must distribute the property according to probate laws. Some properties are exempt from probate even when there is no will if the property is valued below a state-required amount.
The allocation of property as prescribed in many intestate laws is often determined by the relationship of the heir to the deceased. For example, a surviving spouse often receives equity, which is what is left over after taxes, debts, and legal fees have been paid in full or a significant portion thereof. A distant relative is likely to receive little or no property if there are other heirs, such as children. The parents of the deceased are also heirs and often receive all the estate if there are no surviving spouses or children. Probate laws often prescribe what percentage of the estate goes to the heirs.
An invalid will can result in legitimate probate proceedings. In most jurisdictions, for a will to be valid, it must be in writing and signed by the deceased. There are often other legal requirements, such as at least two witnesses signing in the presence of a notary. If the will is invalid in the place where the deceased died or where the will was made, it will be treated as if there was no will.
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