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What is Probate Law?

Gavel estate probate wills attorney wordsProbate law is a term probably everyone has heard of. We’ve all heard of probate judges. Do you have any idea what probate law includes? You might have a few guesses, but read further to fully understand what probate law is.

First, let’s define “probate”. Probate is actually a legal document. When someone dies, receiving the probate is the initial step in the administrative process of settling his or her estate. The probate court will decide the validity of the will and grants the executor the right to carry out the will. The executor is granted the right to dispose of the owner’s property as determined in the will. This probate court is also where a will can be contested. If there is no will, the probate court will name an administrator. This person is normally a close family member.

That sounded pretty simple, didn’t it? But as will any legal proceeding, there are many technical steps that need to be followed. An executor needs to be guided in how and when to divide and distribute assets. There may be creditors that have claims against the estate. To allow these creditors time to make a claim, the creditors will be notified and notices regarding the estate published. There will be time constraints on filing a claim against the estate. An executor of a will may also need to hold off on distributing assets if a lawsuit regarding the death is pending.

When as estate is divided up amongst beneficiaries there are inheritance taxes and income taxes to consider. Any income tax on interest or property tax will be deducted from the amount given to the beneficiaries prior to the distribution of funds. Any property that is payable on death, such as life insurance policies or bank accounts that contractually go to a beneficiary may not have to be included in the probate process. Property that is jointly owned will also not be included in the probate process.  States have local laws that are determined by the complexity of the estate. If an estate is relatively small, the probate process can likely be avoided entirely.

The probate process can be complicated, especially when grieving family members are not thinking clearly. It is always best to retain a probate lawyer to assist at this difficult time. Probate lawyers are specialists in the probate law. They act as representatives to the executor or administrator of the will.