When an individual dies, some or all of his or her property will go through probate. It is a legal process in which an individual’s assets can be inventoried, and his or her will declared valid. If an individual has no will, property may be given to a spouse or other family members as determined by state law.
Probate property is any property that is subject to the probate process, as a probate lawyer Roseville CA can explain. Assets that are put into a trust are generally considered outside of a person’s estate when he or she passes away. Assets that have beneficiary designations or that have been titled to be transferred on death are also generally exempt from the probate process.
Why Does Probate Exist?
Probate exists to give interested parties the ability to challenge a will, or otherwise present legal arguments as to why they may be entitled to property. Creditors are also notified that an individual has passed, which may make it easier for them to put a claim on any funds raised if property is liquidated.
Legal challenges may also be made if there is reason to believe that a will was changed or altered because of undue pressure placed on a testator. Wills or trusts may also be challenged if there is reason to believe that they were changed despite the fact that an individual wasn’t of sound mind to do so.
Are There Benefits to Avoiding Probate?
There are many benefits to avoiding probate, depending on the circumstances surrounding an estate. Those who don’t want details of their estate made public may prefer to pass assets through a trust, as its terms won’t be released to the media or other parties. Some may feel that the cost of going through probate may be higher than the cost of establishing a trust, or may prevent beneficiaries from getting their inheritances in a timely manner.
How Long Does Probate Take to Complete?
If there are no legal challenges to a will, probate could be wrapped up in a matter of weeks. This assumes that the deceased left a clear will, and made it easy for the executor of the estate to inventory assets and begin to transfer assets. If there are challenges to a will, it could take months or years to complete the process.
Probate may also take longer to complete if the executor of the estate cannot be found, or if any potential interested party cannot be found. It is important to point out that anyone who could possibly stand to receive assets must be contacted, even if he or she is not included in the will.
What Is a Legal Will?
The definition of a legal will varies depending on what state you live in. In some states, a will is legal if it is typed and signed by two witnesses of sound mind. In others, it is legal as long as there are no challenges to the version presented to the court. A witness can be anyone over the age of 18 who is of sound mind. However, those who stand to benefit in any way from a will may not be allowed to act in this capacity.
Any property that is left inside of an estate after an individual passes on is considered probate property. Therefore, it will be subject to the probate laws of the state in which the property is located. If an individual has not named an executor to his or her estate, one may be named by a probate court with appropriate jurisdiction.
Thanks to our friends and contributors from Yee Law Group for their insight into probate practice.