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Published On: Wed, Jul 18th, 2018

Understanding Probate Law

There are many branches of law. Each one is a specialty that someone who has studied to be in the law profession decided to specialize in. Some examples of these many branches include prosecution, probate, defense,  and many others. Probate law is a very important branch because it is vital for that tragic time when someone passes away. It is the way that order will be kept and a person’s last wishes for their property to be fulfilled. For those who find themselves in need of someone to guide them through the probate process, the whole thing can seem quite daunting. If you want to learn more about probate law, continue reading for some basic information to help you understand the process.

photo/ jessica45

The best place to begin is by understanding exactly what probate law is. Probate is the term used to describe the process of transferring property at an individual’s death. The first step is for a person to formalize their wishes of what they want to be done with their property at their death. This generally takes the form of a will but can take the form of any legal, binding document drawn up by a lawyer. This will be the guiding information as to how the probate process will go.

There are times where the probate process is avoided altogether. In general, there are three ways to avoid the probate process. The first is to have joint ownership with rights of survivorship. This means that is two people own a home jointly with rights of survivorship and one of the passes away, their share of the property is automatically transferred to the remaining owner. The same goes for any number of owners provided they have joint ownership with rights of survivorship. This is slightly different from a combined ownership referred to as tenants in common. This means that each party owns a specific amount of the property. For example, if three people own a property together under the “tenants in common” understanding, one owner may own fifty percent of the property while the other two own twenty-five percent each. Also, there are no rights of survivorship under tenants in common. If one of the owners passes away, their share of the property is not automatically transferred to the remaining owners. Instead, it becomes a part of their estate unless the deceased person left a will stating that their share is to be dispersed among the remaining owners. The other two ways to avoid the probate process is through gifts and revocable trusts.

Of course, the probate process exists for a reason and is intended to protect all involved parties. There are two paths probate can take, contested or uncontested. The most common reason for a contested probate is an unhappy heir who is is not pleased with what they received in the will and/or believes there is a problem with the will. An uncontested probate is when everyone is happy with the way things are and no problems arise.

The probate process goes through a very specific set of steps. The first step is to collect all of the decedent’s probate property. Next, all debts, taxes, and claims owed by the estate will be settled. The next step is collecting all rights to dividends, income, etc then settling any and all disputes. Finally, all remaining property will be transferred and distributed to heirs appropriately. All steps of the process goes through the court system. As a general rule, the decedent appoints an individual to be the executor of their estate which means they will be in charge of managing everything. If the decedent has not appointed someone to act as executor, the court will appoint someone.  There are a few fees associated with the probate process. Fees for the representative, attorneys, and court costs.

It is a wise idea for every adult to have a will and to have an appointed representative. This will make for a much smoother process in the event of the individuals passing. This importance remains regardless of relationship status, how much property is owned, and whether or not you have children of any age. To make sure everything is set up to be distributed in the way you wish, it is of the utmost importance to hire an experienced estate attorney.

Because every state is a bit different when it comes to probate laws and regulations the best step you can take regardless of whether are setting up your own will or are contesting that of a relative, is to hire a skilled attorney. To do this it may be necessary to take some time and do some research. There are a few steps you can take to ensure you find the best lawyer for you and your needs. In most areas, there will be several lawyers to choose from, even very small towns generally have a couple of lawyers. Because of this, it is of the utmost importance to choose wisely. Due to this, the first step is to compile a list of all viable choices. After you know exactly what your options are, you can begin researching each one. While researching look at details such as years practicing, prices, accreditations, history, and specialties. This research will, inevitably take some contenders off of the list immediately. At this point, it will come down to details such as proximity, best price, and personal preference.

Any branch of law has the potential to become complicated given the right set of circumstances, but it does not have to. The best way to avoid unnecessary complications is by educating yourself and learning as much as possible how legal processes work. In this, probate law is no different. The more you understand, the better you will be able to help yourself should you ever be in a position to need a specific branch of law. This has been only the very basics of understanding probate law, there is so much more to learn. Hopefully, you have gained enough knowledge to answer any questions you may have had when you began reading. For more information about Probate law, contact Pyke & Associates.

Author: Gregory Ortiz

About the Author

- Outside contributors to the Dispatch are always welcome to offer their unique voices, contradictory opinions or presentation of information not included on the site.

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