Probate is the process of liquidating an estate after the owner has passed away. This includes everything from paying off any outstanding debts to the disbursement of material goods as detailed by the will or state laws. The process can vary depending upon the state in which the deceased resided in, but the following guide can help you understand the basics.
Does every death require probate?
Generally, no. Probate usually only occurs when all the assets are only in the name of the deceased. This means that there usually isn't probate if there is a surviving spouse, since most assets will likely have both of their names on them. In some cases, certain assets may be exempt from probate, while others are not. For example, if a married couple own a home jointly, then the home is exempt, but any bank account solely in the name of the deceased may end up in probate.
Are there other ways to avoid probate?
In some states there are other ways that probate can be prevented. The most common method is to create a living trust instead of a will. With a living trust, the assets have already been bequeathed to the beneficiary before death, although they cannot have them until the owner has passed away. Another option may be to name beneficiaries on different accounts and assets.
How is probate enacted?
A personal representative is appointed to oversee the estate. This person is usually named in the will as the representative, although the court will have to approve this naming. They will then liquidate the estate as needed to pay off any outstanding debts. The remainder of the estate will then be divided as detailed in the will. In some cases, probate is as simple as changing the name on asset paperwork from that of the deceased to that of the inheritor.
What if there isn't a will?
The division of the estate in the event of no will varies greatly between states. Some states have a detailed hierarchy set up for inheritances in the event of no will. Most common is that the surviving spouse inherits everything. In the event there is no spouse, then the assets may be divided amongst the children of the deceased. From there, it may go to siblings or parents if there are no children. In rare cases, the state may be able to take the inheritance, generally when there is no relative to make a claim.
Talk to a probate attorney if you need more help.