Probate is a method of transferring assets as provided in
a Will, or, if a person dies without a Will, of transferring
assets to his or her heirs in accordance with state law.
Assets in the decedent's name alone must be probated to
transfer title. Community property must be probated if it
is left by a Will to someone other than the surviving spouse.
Assets that cannot be controlled by a person's Will are not
subject to probate.
If the decedent left a valid Will, after death the Will
is offered for probate and the court appoints an executor;
if the decedent left no Will, the court appoints an administrator.
The executor or administrator must collect assets subject
to probate, pay debts and death taxes and request court approval
to transfer assets to the persons named in the Will or to
the decedent's heirs.
The fees charged by executors or administrators and their
attorneys are determined by state law based upon a specified
percentage of the gross estate.
The estate pays income tax due on the income of probate
assets until the assets are distributed or the estate is closed.
The usual duration of probate is from nine months to two
years. The size and complexity of the probate estate determines
its duration.
The court grants the executor or administrator approval
for transfer of probate assets to persons named in the Will
or to the heirs.
On final distribution and transfer of all probate assets,
the court discharges the executor or administrator.
The advantages claimed for probate proceedings are:
The heirs and beneficiaries are protected by the court.
Probate cuts off the claims of creditors after the four-month
period following the first date of publication of notice
to creditors of the decedent's death.
The transfer of title is a public record that prevents
problems with title companies.
Questions and disputes are settled under the protection
of the court.
The estate is a separate taxpayer and some tax planning
may result.
The costs are deductible for income tax purposes if
properly planned and for death tax purposes if properly
planned.
The disadvantages asserted against probate proceedings are:
They are expensive.
They are time-consuming; the delays are excessive.
