What Clients Should Know About Probate

Posted on: 23 September 2019


Probate law is a topic that most people encounter rarely as compared to other legal issues. This creates a lot of confusion, and folks may even get upset because they don't understand what's going on with a loved one's estate. If you're worried about the implications of the process, it can be helpful to learn some of the basics.

It's Not a Swear Word

The probate system exists to make sure everyone's rights are protected. "Everyone" can have a pretty wide scope, including the deceased's creditors, the government, unnamed claimants, and people who object to the terms of a will.

Upon an individual's passing, the local probate court will have to address the situation. If there was a will and an executor was named, they will file paperwork with the court to assert the will's veracity and its terms. In the absence of a will or an executor, the court will appoint someone. When there are questions about the ability of an executor to do the job, the court may also conduct a hearing to determine whether there is a problem.

Probate Usually Goes Fairly Smoothly

In some ways, transfers of property as part of an estate aren't very different from real estate transfers. The legal system simply wants to verify that everything is on the up-and-up. This entails providing a venue to anyone who has a claim on an estate, but the most common problems are typically back taxes and any taxes the beneficiaries might owe.

For the government, its biggest interest in an estate is usually seeing that the value of the property is honestly assessed. This is, predictably, to ensure that everything is taxed properly.

Does All Property Go Through Probate?

Most states have requirements for how much property has to be involved before a probate proceeding is required. For example, California allows the transfer of $100,000 worth of property without probate being invoked. Where this can get sketchy is if the valuations attached to pieces of property appear to be part of a probate- or tax-avoidance scheme. As long as the estate has been handled honestly, a trip to a probate law office isn't inevitable unless the estate is reasonably large.

Some bank accounts can also be kept out of probate. Providing the bank with paperwork that allows it to pay the account out to another party on death will ensure this happens. Community property held with a surviving spouse is usually transferable without probate, too.

For more information, contact a probate law office in your area.