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Probate

Probate

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Published by Wan Mohd Ikram

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Published by: Wan Mohd Ikram on Jan 26, 2011
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Probate
is thelegalprocess of administering theestateof a deceased person by resolving all claims and distributing the deceased person'spropertyunder the valid will. Asurrogate courtdecides the validity of a testator's will. A probate interprets the instructions of the deceased, decides theexecutor as thepersonal representativeof the estate, and adjudicates the interests of heirs and other parties who may have claimsagainst the estate.[edit
 
]
Probate and Trust Administration "The Legal"
Probate is a process by which property of a decedent is retitled. As with any legal proceeding, there aretechnical aspects to probate and trust administration: Creditors need to be notified and legal noticespublished. Trustees need to be guided in how and when to distribute assets and how to take creditors'rights into account. A Petition to appoint a personal representative may need to be filed and Letters of  Administration obtained. Homestead property, which follows its own set of unique rules in states likeFlorida, must be dealt with separately from other assets. There are time factors involved in filing andobjecting to claims against the estate. There may be a lawsuit pending over the decedent's death or theremay have been pending suits that are now continuing. Real estate may need to be sold to effectuatecorrect distribution of assets pursuant to the estate plan or merely to pay debts. Estate taxes must beconsidered if the estate exceeds certain thresholds. Other assets may simply need to be transferred fromthe decedent to his or her heirs.[edit]
Etymology
See also:Probative 
Theetymologyof "probate" stems from Latin, old French, and old English words with somewhat differentmeanings. The earliest definition, dated to 1463, means the "official proving of a will," and originates fromtheClassical Latinword
 probatus
, meaning "proven" or "a thingproven."
[1]
This is thepastparticipleof 
 probre
, which means "to try, test, prove" or "prove to be worthy".
[1]
It also traces its roots tothe old French word
 prouwe
, dated circa 1175, or 
 prover 
, and is related to the English word "prove", andthe Welsh word "profi" (to test).
[2]
The term "probative," used in the law of evidence, comes from the sameLatin root but has a different English usage.[edit
 
]
Commonwealth
InEngland and Wales,Northern Ireland,Commonwealthcountries (common law  jurisdictions),Irelandand in the U.S., probate ("official proving of a will") is obtained by executors of a will whileLetters of Administrationare granted where there are no executors.
[3]
 [edit
 
]
U.S.
 
See also:Uniform Probate Code 
In any jurisdictions in the U.S. that recognize a married couple's property astenancy by the entireties, if aperson diesintestate, the portion of his/her estate so titled passes to a surviving spouse without aprobate.If the estate is not automatically devised to the surviving spouse in this manner or through a joint tenancy,and is not held within atrust, it is necessary to "probate the estate", whether or not the decedent had avalidwill. A court having jurisdiction of the decedent's estate (a probate court) supervises probate, toadminister the disposition of the decedent's property according to the law of the jurisdiction and thedecedent's intent as manifested in his testamentary instrument. There are exceptions for smaller estates.If the decedent died without a will, known asintestacy, the estate will be distributed according to the lawsof the state where the decedent resided or held by the court.
[4]
If the decedent died with a will, the willusually names anexecutor (personal representative), a person tasked with carrying out the instructionslaid out in the will. The executor marshals the decedent's assets. If there is no will, or if the will does notname an executor, the probate court can appoint one. Traditionally, the representative of anintestateestate is called an
administrator 
. If the decedent died with a will, but only a copy of the willcan be located, many states will allow the copy to be probated, subject to the rebuttable presumption thatthe testator destroyed the will before death
[5]
 In some cases, where the person named as executor cannot administer the probate, or wishes to havesomeone else do so, another person will be named as administrator. An executor or an administrator mayreceive compensation for his service.The probate court may require that the executor provide afidelity bond, an insurance policy in favor of theestate to protect against possible abuse by the executor.
[6]
 The representative of a testate estate who is someone other than the executor named in the will isan
administrator with the will annexed 
, or administrator c.t.a.(from the Latin
cum testamento annexo
.)The generic term for executors or administrators ispersonal representative.[edit
 
]
S
teps of probate
Some of the decedent's property may never enter probate because it passes to another personcontractually, such as the death proceeds of an insurance policy insuring the decedent or bank or retirement account that names a beneficiary or is owned as "payable on death", and property (sometimesa bank or brokerage account) legally held as "jointly owned with right of survivorship".Property held in arevocableor irrevocable trust created during the grantor's lifetime also avoids probate.In these cases in the U.S. no court action is involved and the property is distributed privately, subject toestate taxes.
 
 After opening the probate case with the court, the personal representative inventories and collects thedecedent's property. Next, he pays any debts and taxes, includingestate tax in the United States, if theestate is taxable at the federal or state level, or the Pennsylvania inheritance tax. Finally, he distributesthe remaining property to the beneficiaries, either as instructed in the will, or under theintestacylaws of the state. A party may challenge any aspect of the probate administration, such as a direct challenge to the validityof the will, known as awill contest,
[7]
a challenge to the status of the person serving as personalrepresentative, a challenge as to the identity of the heirs, and a challenge to whether the personalrepresentative is properly administering the estate. Issues of paternitycan be disputed among thepotential heirs in intestate estates, especially with the advent of inexpensiveDNA profilingtechniques. Insome situations, however, even biological heirs can be denied their inheritance rights, while non-biological heirs can be granted inheritance rights.
[8]
 The personal representative must understand and abide by the fiduciary duties, such as a duty to keepmoney in interest bearing account and to treat all beneficiaries equally. Not complying with the fiduciaryduties may allow interested persons to petition for the removal of the personal representative and hold thepersonal representative liable for any harm to the estate.[edit
 
]
Av
oiding probate
Probate generally lasts several months, and often over a year before all the property is distributed, andincurs substantial court and attorney costs. One of the many ways to avoid probate is to execute alivingtrust. A settlor, or a creator of a trust, transfers ownership of his real property from himself to a trust whichhe controls and can revise (except in the case of an
irrevocable trust.
) Upon death, the persons named asbeneficiaries in the trust acquire ownership of the property of the trust. Since a probate is a publicprocess, a living trust shields private affairs of the deceased and the heirs from public scrutiny and helpsthe estate avoidestate tax.Probate can also be avoided by setting up P.O.D (paid on death) designations on bank accounts andT.O.D (transfer on death) on brokerage accounts, 401ks and IRAs that pass automatically to designatedbeneficiaries. As for real estate, a testator must add a named beneficiary to a deed by executing a life estate deed. Theproperty can be passed several generations.The key to avoiding probate is having named beneficiaries on all assets, as is the case for life insurance. A common error in life insurance is naming the insured's estate as the contingent beneficiary. Doing sowill place the proceeds from that policy into probate.Life insurance,savings accounts, and joint tenancieswith the right of survivorship are testamentary substitutes to avoid probate.

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