Probate law addresses the disposition of a person's estate following their passing. Unsurprisingly, most folks aren't familiar with probate, and unfamiliarity can leave them with misgivings. Before you deal with the probate system, you may want to learn its four main functions.
The first goal of any probate proceeding is to determine if there was a will. Presuming there was at least one copy of the will, the court then proceeds to validate it. The process involves reconciling any conflicting versions of the will if there was more than one. Likewise, the court needs to validate basic elements of the will, such as the grantor's signature and whether there a sufficient number of witnesses were present at the time of the signing. These requirements must follow state laws regarding the signing, dating, and witnessing of estate documents.
Absent a will, the court must decide what best approximates the intentions of the deceased. Generally, a judge will make determinations based on state laws regarding the disposition of assets and who might be a beneficiary of the estate.
If the will named an executor, the court must decide if the person can faithfully serve in that role. When an executor is unavailable or conflicted, the judge has to determine if there is a successor and whether that person can serve as executor. If there still isn't an executor at this point due to the exclusion or absence of named parties, the court will appoint an administrator.
An estate's administration must execute the will. This means distributing assets, settling debts, notifying beneficiaries, and filing reports with the court. It isn't uncommon for an administrator or executor to hire a probate law attorney to assist them in handling these tasks and answering the judge's questions.
The estate must resolve any outstanding issues from the decedent's financial life. If the person passed with unpaid debts or taxes, the administration must use cash from the estate to resolve these. The executor also can ask the court to liquidate some of the assets to pay outstanding debts and taxes. If there are more obligations than the estate can cover, the court will compel the estate to file for bankruptcy to satisfy its creditors as much as possible.
Presuming the remaining resources justify a distribution, the executor will contact the respective beneficiaries. The estate will then provide them with possession, checks, or documentation as necessary to make the beneficiaries the new owners of the assets.
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