Probate courts were established over 200 years ago to handle legal matters governed by equity law. The primary difference between equity law and civil matters is that equity cases involve entering decrees which direct someone to act or refrain from acting.
Probate courts focus on life matters that do not involve monetary awards. The most common cases heard in probate courtrooms include inheritance, estates, trusts, guardianship and conservatorships. Probate laws vary by state, city and county. Most cases require the assistance of a probate attorney.
The majority of cases presented in probate courts involve inheritance. By law, when a person dies their assets must be held in probate. The exception to this rule is if the decedent established a trust to bypass the probate process.
In addition to trusts, certain assets can avoid probate by designating beneficiaries. Account holders of checking and savings accounts can establish beneficiaries by completing payable on death (POD) forms offered through their bank.
Real estate can be assigned through rights of survivorship. Automobiles can be titled jointly. Investment accounts and life insurance proceeds can be transferred through the establishment of transfer on death (TOD) beneficiaries.
If a married person dies intestate (without a Will), most states pass the estate to the surviving spouse without the need for probate. If a single person dies intestate, the estate must be probated to determine rightful heirs.
The probate process can last several months. Complex cases can drag on for years; particularly if family disputes arise or someone contests the decedent's Will.
Experts claim nearly 85-percent of heirs do not receive anticipated inheritance when estates are probated. This stems from the fact that creditors, estate administrators, and probate lawyers are compensated before assets can be distributed.
It is not uncommon for probate executors to sell assets in order to pay estate expenses. This is particularly true when decedents hold real estate with a mortgage note. During probate, the estate must pay all expenses associated with the property.
Engaging in estate planning is the only way to keep assets out of probate and ensure loved ones receive their inheritance. Otherwise, assets will be held in probate courts for months and heirs probably won't receive a dime once probate settles.
Our probate articles library contains numerous articles on estate planning, inheritance and probate. We invite you to learn about techniques which can protect assets and avoid probate. New articles are added each week, so take a moment to enter your email address in the article subscription box located on the upper right side of this page. You will receive notification when new articles are published.
Published on May 30, 2009 at 02:00 AM