When an individual passes away, the distribution of their property can be managed in different ways, depending on whether or not they have left a will. If the individual has left a will, the probate court will oversee the implementation of the will’s directives. If there is no will, the court will appoint a Personal Representative to distribute the property in accordance with the laws of Descent and Distribution, which are based on hereditary succession.
The probate process involves collecting the deceased’s assets, settling debts and taxes, and ultimately distributing the remaining property to the heirs. The laws governing probate vary by state and have been the subject of ongoing debate and reform since 1960.
Assets that are solely in the name of the deceased, as well as shared properties, are typically considered probate estates. The executor of the will is responsible for initiating court proceedings if necessary and can hire a lawyer to assist with the process. However, the need for probate is not completely eradicated by having a will, as some states require it regardless of the existence of a will.
Many assets within an estate do not need to go through the probate process, such as joint accounts, retirement accounts, life insurance proceeds, and properties held in living trusts, among others. Some states also offer simplified probate proceedings for small estates, known as “summary probate”.
When there is joint ownership of an estate with rights of survivorship, the property automatically transfers to the surviving co-owner(s) without the need for probate intervention. This applies to real estate and joint bank accounts as well.
Certain types of assets must go through probate, including individually owned assets, tenants-in-common assets, and assets without a designated beneficiary. Individual assets, such as vehicles and investment accounts, are subject to probate, as are assets with no beneficiary or a predeceased beneficiary, like life insurance policies.
establishing proper financial arrangements and estate planning can ensure a smoother distribution of property and benefit both the owner and their heirs. The probate process may vary based on individual circumstances and state laws, so it’s important to seek legal advice and understand the specific requirements for each case.
