Probate law encompasses the rules governing the administration of the estate of a deceased person in order to resolve all claims against the estate and distribute the deceased’s property. If a person writes a will prior to death, then these are sometimes called testamentary probate proceedings. If they died without writing a will, the person is said to have died intestate.
Testamentary Probate is often simply a matter of appointing an executor to administer the estate and see that the assets and obligations of the estate are handled according to the directions written in the will. However, there are times where heirs or creditors may challenge the contents of the will in order to claim that they are entitled to more than what has been left for them. When that happens, a probate court decides whether the claims are valid and makes the necessary adjustments to the final distribution of assets in the will. Similar to declaring bankruptcy, you have to notify potential creditors of the probate proceeding. However, if they fail to make timely claims, or their claims are of a lesser priority than those of other beneficiaries or creditors, then their claims are extinguished.
When one dies without any estate planning and without leaving a will, then the probate court is usually called upon to distribute the deceased person’s assets. This is done according to state laws and is often handled much like bankruptcy cases. That means that priorities have been established and any untimely and inferior claims will be extinguished by court order. In general, the law of succession states that after satisfying certain creditors, spouses are entitled to the largest share of a decedent’s estate. That is followed by his or her children and then any other close family members.
In order to deal with the often conflicting and contradictory state probate laws, a Uniform Probate Code was suggested. Since many states have adopted it, or large portions of it, it has made the probate process much more uniform between different jurisdictions. However, there are still a few states that have not yet done so. Therefore, it is critical to determine which laws may affect the probating of an estate you are involved with. This is particularly true if there are assets, such as homes or other real estate, located in multiple states.
If you have not formalized your intentions in the form of a will or trust, your estate may meet with unnecessary and costly litigation and this could add to the grief experienced by your loved ones. In order to avoid the financial and emotional turmoil of will contests and other legal issues, it is best to start with choosing an experienced estate planning attorney to help settle your affairs now. This is especially true if you have a large estate, children with a spouse from whom you are divorced, community property, or a business. The process of writing a will is simple. However, there are sometimes more complicated issues you will need to consider.