Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the deceased person's property. If the decedent did not have a Will, then s/he died “intestate” and the estate will be administered and assets will pass according the state law. If the decedent had a Will, Probate confirms the validity of his/her Will. Once a Will has been probated by the court, everyone can rely on its authenticity. Probate protects the instructions of the deceased, confirms the executor as the personal representative of the estate, protects the interests of family members who may have claims against the estate, and protects the executor against claims and law suits.
Some of the decedent's property may never enter probate because it passes to another person contractually by beneficiary designation or automatically by operation of law. Examples include the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as "payable on death", and property (usually, again, a bank account or real property) legally held as "jointly owned with right of survivorship". Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property avoids probate.
The first task of the personal representative after opening the probate case with the court is to inventory and collect the decedent's property.
Next, the personal representative pays any debts and taxes that must be paid.
Finally, the personal representative distributes the remaining property to the decedent's beneficiaries, either as instructed in the will, or per the intestacy laws of the state.
The personal representative must understand and abide by the fiduciary duties placed on him or her. The attorney will guide the personal representative in carrying out these duties as disregard of the fiduciary duties may allow interested persons to petition for the removal of the personal representative and hold the personal representative liable for any harm to the estate.
One of the many ways to avoid probate is to execute a living trust. This is a separate entity to which a person transfers ownership of his property from himself to a trust which he controls and can revise at any time (except in the case of an irrevocable trust.) Upon death, the persons named as beneficiaries in the trust acquire ownership of it and, therefore, the property the trust owns. A living trust has the added advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax. There are of course other methods of avoiding probate, some of which may or may not be appropriate in a given situation.
Avoiding probate does not necessarily mean estate taxes have also been avoided. The laws imposing the federal estate tax include within the definition of the person's taxable estate, property held in a living trust, life insurance, "payable on death" or "transfer on death" financial instruments, and most other property which is transferred from a dead person to a living person in consequence of the death. Inter vivos trusts can reduce estate taxes if they are properly structured, but that is not related to the avoidance of probate.
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