What Actually Is Probate? What Does Probate Mean?
Probate is the legal process that is set up in order to settle the final affairs of a person who has died. This includes paying off all of their debts, and resolving any disputes. Once the estate is in a position to do so, and then distribute the assets of the estate to the beneficiaries under the will. In case if the decedent did not leave a will, to the beneficiaries as determined by state’s statute.
Who Is Represented In Probate Cases?
The attorney would represent the executor of the estate. In some states, the executor has been renamed as personal representative but it is one and the same person. The executor is the one that is charged with administering the estate and then distributing the assets of the estate to the beneficiaries. The attorney will represent the executor to assist the executor in discharging his or her duties.
Is There More Than One Type Of Probates?
Yes. In almost all states, there are two types of full-blown probates. One is referred to as a supervised administration probate. In a supervised administration probate, the executor is not authorized to take any action without obtaining an order from the probate judge. For example, if the executor desires to sell the decedent’s house or a stock that the decedent left in a brokerage account, the executor first must go to the probate judge and receive an order permitting the executor to do that.
The other type of probate administration is referred to as independent administration. In independent administration, the executor is authorized to take actions without the advance consent of the probate judge. In that case, the executor can sell assets, pay expenses and the like without going to the judge. At the end of the administration, the executor can file a full accounting of what was done for the court to approve.
What Are Some Initiating Factors That Really Set The Stage For Probate To Occur?
Usually, what causes probate is that a person’s signature is needed but that person is deceased. That is why probate has to happen. For example, if you own a house and the house are titled solely in your name and you die, your heirs cannot sell the house. That is because since the house is in your sole name, you are the only person who can sign the deed to transfer the house to the new buyer. Since you are deceased, you cannot do that.
What happens in probate then, is that an executor or a personal representative is appointed. Once appointed, that person now has legal authority to sign to transfer the assets with a signature that would otherwise be required from you.
This article was originally published by Steve Spewak on EstatePlanMO.com. It is republished here with permission.
