A Probate Overview
Probate is often misunderstood with a reputation of being expensive, lengthy, and confusing. At the Miller Elder Law Firm, our commitment to the community is an education to help you understand the basics of the legal process. This allows you to make informed, sound decisions with all of the facts.
Enjoy our series about probate and what you need to know.
What is Probate?
It is a court-supervised process for identifying and gathering the assets of a deceased person (decedent), paying the decedent’s debts, and distributing the decedent’s assets to his or her beneficiaries. In general, the decedent’s assets are used first to pay the cost of the probate proceeding, then are used to pay the decedent’s outstanding debts, and the remainder is distributed to the decedent’s beneficiaries. Probate administration applies only to probate assets; these are assets that the decedent owned in his or her sole name at death, or that were owned by the decedent and one or more co-owners and lacked a provision for automatic succession of ownership at death. Probate is required to transfer those assets. This requires a personal representative (PR) who is either named in the will or by the court if there is not a will. See our blog on the duties of a personal representative.
What are Probate Assets?
The decedent’s assets in his /her sole name at death or assets with co-owners and no provision for automatic succession are considered probate assets and require the court-supervised process.
A bank account or investment account in the sole name of a decedent is a probate asset, but a bank account or investment account owned by the decedent and payable on death or transferable on death to another, or held jointly with rights of survivorship with another, is not.
A life insurance policy, annuity contract or individual retirement account that is payable to a specific beneficiary is not a probate asset, but a life insurance policy, annuity contract or individual retirement account payable to the decedent’s estate is a probate asset.
Real estate titled in the sole name of the decedent, or in the name of the decedent and another person as tenants in common, is a probate asset (unless it is homestead property), but real estate titled in the name of the decedent and one or more other persons as joint tenants with rights of survivorship is not a probate asset.
Property owned by husband and wife as tenants by the entirety is not a probate asset on the death of the first spouse but goes automatically to the surviving spouse.
Probate is necessary to pass ownership of assets from the decedent to the beneficiaries, provide closure to the estate, and to make sure creditors are paid.