What is Probate?
Probate is the court proceeding whereby a judge examines your will to see if it meets the proper technical requirements for a will, and appoints an executor (who you have named in the will) to administer the will. The executor then (1) marshals your assets — collecting together all the property held in your name alone, (2) pays your creditors, and (3) distributes the balance of your property to the beneficiaries you name in the will. Requirements vary from state to state, but in Illinois a probate must remain open for six (6) months after the will is submitted to the judge and the executor is appointed. This is the time period given to creditors to bring their claims to the attention of the executor. Because of this six-month delay in the executor being able to distribute assets to the beneficiaries, and because a probate is a public court proceeding with attendant lack of privacy and court costs, most of our clients wish to avoid probate.
Probate is the legal process of transferring property following a person’s death. If a person dies “Testate” (with a Will), or “Intestate” (without a Will), a probate is required to be opened and monitored by the appropriate local court. Once a probate is opened, it also becomes a matter of public information. Although probate customs and laws have changed over time, the purpose has remained much the same: to make sure that your intentions regarding the transfer of your property at the time of your death are followed. Your property is collected, inventoried and appraised, certain debts are paid from the estate and the property is distributed according to your will after debts and taxes are paid. However, most probates can be costly, time-consuming, and complicated.
Probate is a process that takes place when someone dies with property in their name alone. Joint accounts and property held by husband and wife as tenants by the entirety are not probate property. Joint property and property held as tenants by the entirety passes to the co-owner(s) immediately upon the death of a CO-owner Tenancy in common means that the property is held in equal shares and passes to the individual’s estate upon death with all tenants in common having equal rights. A person dies “testate” with a will and “intestate” without a will. A will should be filed within 30 days of the date of death but is often filed much later without penalty. An individual named as Executor under the will must be appointed by the Probate Court in the county where the deceased resided. If a person dies intestate with property, the property passes by the state law of intestacy upon a petition to the Probate Court appointing an Administrator. Intestate property first passes to a surviving spouse
Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law). Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years. To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration
Probate involves the process that transfers legal title of property (the probate estate) from the person who died (the “decedent”) to his or her beneficiaries. The probate process also provides for paying outstanding debts and taxes of the estate. Probate sets a deadline for filing claims by creditors against the probate estate. This forecloses any old or unpaid creditors from hounding heirs or beneficiaries after the probate estate is closed. Probate then allows for distribution of the remainder of the probate estate’s property to one’s rightful heirs. The expense and delays of probate can often be avoided with a properly drafted trust. However, in cases where probate is necessary, we can guide you through the process.
