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Probate — Overview

In a civilized society, a legal mechanism for dealing with a deceased person’s property is essential. Think of the chaos that would result if, when someone died, the law allowed anyone free access to take all or any part of the deceased person’s property on a “first come” basis. Instead, we have developed a system that protects and sometimes directs the distribution of property on a person’s death. Our laws recognize that some order must be maintained in the situation and so they provide, among other things, for what is called the right of “freedom of testation” and a legal process to deal with those estates that have exercised that right, as well as those that have not.

Freedom of testation simply means the right to leave your property on your death in almost any manner you choose. Few people realize that this is not a “natural” right. It would be quite possible, for example (though it would certainly meet with resistance), for the government to rule that on a person’s death, all of his property would belong to the government. Such an approach, however, would, among other things, discourage the acquisition of property and would soon undermine our capitalistic system. Therefore, we are “allowed” to acquire property freely during our lifetime, to keep it or dispose of it as we wish during that period, and on our death, we are “allowed” to decide, subject to certain obligations to keep our spouse and children in mind, who will get what is left. These decisions, if you want them to be carried out must be reflected in a valid will or some other legal disposition; otherwise, the laws of the state will decide how your property will be divided. Whether or not you decide to exercise your “freedom of testation” and make a will, the division and transfer of the property that is part of your “probate estate” can be done only by the Probate Court.

When we talk of the “probate estate” (or “probate property”) in this sense, we mean any type of property that stands in your name alone at the time of your death or that would require action on the part of your executor or administrator to transfer. It would not include, for instance, jointly held property or assets that are payable to a named beneficiary at death. It includes only property over which you alone would have control. From a “legal” perspective, therefore, if on death we wish to transfer any of our “probate” or “estate” property to someone who survives us, or if our estate is to be given to the spouse and children equally because we left no will, just how would this be accomplished? They could not simply “take” the property, because they would not have legal ownership of it. And on what legal grounds could they support their ownership if they did take it? This is why we must have some orderly legal process if we are to recognize any rights to transfer property at death, and this is where the probate process comes in.

Therefore, whether you decide to write your own will or to have no will at all, whether you are a beneficiary of an estate or a creditor, and whether you think there will be no disputes or you can’t wait to start one, it is very important for you to understand how the probate process works. This is because probate is the system that determines and governs the distribution of the probate estate to the heirs and beneficiaries, the payment of estate debts after death, the resolution of disputes and claims against the estate, and contests against the will.

Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.

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