What is the Definition of Probate?

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Understanding what probate is and the role it plays in estate planning is important for everyone. In this guide, we will explore the definition of probate, how it works, and the potential benefits and risks associated with it.

What is Probate?

Here is your probate definition: Probate is the legal process by which the estate of a deceased person is distributed, according to their will (if they had one). The probate court oversees the process and ensures that the wishes of the decedent are carried out. In some cases, if no will has been made or it can’t be located, then state law determines how the property is distributed.

What is Probate Court?

Probate court is the branch of your local court that handles the following types of cases:

  • Administration of a deceased person’s assets if there was no trust.
  • Overseeing the administration of a person’s trust when there is a dispute.
  • Appointing someone to manage an incapacitated person’s legal, financial and health care decisions.

The Probate Process.

Probate is the legal process by which a personal representative distributes the estate of a deceased person. The personal representative must distribute the estate according to the deceased person’s will (if they had one). The probate court oversees the process. The court ensures that the personal representative carries out the wishes of the deceased person. In some cases, if the deceased person did not have a will or no one can find it, then state law determines how the property is distributed.

State law also sets forth a procedure for handling other issues involving a deceased or incapacitated person. For example, there is a process appointing a guardian or conservator to act on behalf of an incapacitated person.

Benefits of Probate and When it is Necessary.

Probate is beneficial as it offers transparency and oversight throughout the process. It helps ensure that decisions made about allocating resources from an estate are in line with the instructions provided in a will, as well as applicable state laws. Probate is usually necessary when there are assets, debts, or real estate to be distributed from an estate. In many cases, probate may not be necessary if all of the deceased’s assets were owned jointly with another person or held in a living trust.

The Types of Probate Litigation.

When disagreements arise within the probate process, a court dispute may be necessary. This type of litigation typically focuses on one or more contesting parties that disagree regarding an aspect of the probate process, such as the disbursement of assets or who should be a beneficiary of property from an estate. Other common types of probate litigation can involve creditor claims, challenges to the will’s validity, objections to how executors are handling their fiduciary duties and issues with powers of attorney.

How Can an Estate Planning Attorney Help?

Planning to Avoid Probate.

If you are planning your own affairs, an experienced estate planning attorney can help you and your family avoid the probate process. They can help ensure that wills, trusts and other estate documents are properly drafted and executed to protect your assets and meet your desired goals.

In addition to assisting with the probate process, an estate planning lawyer can provide legal advice regarding subjects like taxes and creditor protection, as well as provide guidance about how best to manage family disputes in order to prevent court battles among beneficiaries.

Helping With Uncontested Probate.

If your loved one has died, most estate planning attorneys can help you through the probate process. However, if there may be disputes — or you know there will be a fight — you need a probate litigation attorney.

When You Need a Probate Litigation Attorney.

A probate litigation attorney is familiar with the probate process, and is also has civil litigation skills. Here are some common situations in which you should hire a probate or trust litigation attorney.

Are You Personal Representative or Executor in a Will, And You Suspect There Might Be a Fight?

If you suspect that other family or friends of the deceased person will contest your appointment as Personal Representative, you need someone in your corner. Your attorney can ensure you are doing the right things. (Otherwise, if you make a mistake you could be personally liable.) And your attorney can help protect your rights.

Are You Trustee in a Trust, and You Suspect There Might Be a Fight?

If you are the named trustee, and you think others will fight with you, then need a trust litigation attorney by your side. That attorney will help you interpret the trust document and do what is required. And the attorney will help prevent you from doing something that could result in you being liable to the other beneficiaries.

Do You Disagree With What a Personal Representative or Trustee is Doing?

If a personal representative or trustee is acting improperly, a probate litigation attorney can help you take the appropriate actions. For example, it may be possible to remove the person in charge and appoint someone more responsible. It may also be possible to hold the person in charge responsible for any losses they caused.

Do You Think a Will, Trust or Power of Attorney is Not Valid?

Maybe someone unduly influenced your loved one to sign legal documents. In this case, your probate litigation attorney can ask the court to unwind the documents.

Summary of Probate Definition.

A probate definition can refer to many things. First, it can refer to the “probate court” that handles the affairs of deceased and incapacitated people. Second, it can refer to the process of going to probate court.

The probate definition also sometimes refers to when people are fighting over the assets of a deceased or incapacitated person. In that case, you are dealing with probate litigation.

If you want help with a probate, give us a call.

We have decades of experience with all aspects of probate. Give us a call at 602-443-4888.

ABOUT THE AUTHOR

Founding attorney Paul Deloughery has been an attorney since 1998, became a Certified Family Wealth Advisor. He is also the founder of Sudden Wealth Protection Law.

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