Probate Law

A probate is a legal process in which a will is reviewed to determine whether it is valid and authentic. Probate also refers to the general administering of a deceased person’s will or the estate of a deceased person without a will. The court appoints either an executor named in the will (or an administrator if there is no will) to administer the process of collecting the assets of the deceased person, paying any liabilities remaining on the person’s estate, and finally distributing the assets of the estate to beneficiaries named in the will or determined as such by the executor.

A probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. When a property owner dies, his assets are divided among the beneficiaries listed in his will. In some case, the testator or deceased does not leave a will which should contain instructions on how his or her assets should be distributed after death. Whether there is a will for guidance or not, the assets of a decedent’s estate may be required to go through probate.

When a testator dies, the custodian of the will must take the will to the probate court or to the executor named in the will within 30 days of the death of the testator. The probate process is a court-supervised procedure in which the authenticity of the will left behind is proven to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the will, which, in turn, gives the executor the legal power to act on behalf of the deceased.

The legal personal representative or executor approved by the court is responsible for locating and overseeing all the assets of the deceased. The executor has to estimate the value of the estate by using either the date of death value or the alternate valuation date, as specified in the Internal Revenue Code (IRC). Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. You must probate real estate in the county in which it is located.

The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time from the date they were notified of the testator’s death to make any claims against the estate for money owed to them. Claims that are rejected by the executor can be taken to court where a probate judge will have the final say on whether or not the claim is legal.

The executor is also responsible for filing the final personal income tax returns on behalf of the deceased. Any estate taxes that are pending will come due within nine months of the date of death. After the inventory of the estate has been taken, the value of assets calculated, and taxes and debt paid off, the executor will then seek authorization from the court to distribute whatever is left of the estate to the beneficiaries.


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