Probate and Estate Planning


Anna Marie Holland found out about probate shortly after the passing of her mother. Up until then, she did not know the difference between probate and rebate. She assumed probate was returning a rebate to a merchant. Anna quickly learned probate represents the legal process that officially transfers property from the deceased to people explicitly mentioned in a will. Under probate, Anna discovered she had full ownership of her mother’s home, which she eventually put on the market.

Probate laws and regulations have evolved over the past 20 years, but the intent of probate remains the same. People formalize how they want to transfer property at the time of death, as well as discharge debts from payments made from revenue generated by an estate sale.

The Administration of Probate

Anna’s mother passed in early 2016 and soon thereafter, Anna began participating in the probate administration process. The court managed probate process determines the how and the what of property transfers. Probate property is owned by the deceased and it does not pass on to other people through special designations, such as life insurance policies and bank policies that include “Payable on death” clauses. Anna heard the expression “Probating a will” during her probate experience. Probating a will represents the process that follows the explicit directions of disbursing property mandated by a will. Anna learned there are three ways to avoid probate, which some people attempt to do because of probate fees. Gifts, revocable trusts, and joint ownership with the right of survivorship allow you to avoid probate. However, probate law exists to ensure property transferred from the deceased goes to the right parties.

The Probate Process

Probate cases can be either contested or uncontested. Contested probate cases typically unfold because a disgruntled heir believes he or she is entitled to more property that what a will mandates. Anna was fortunate that she was the only living heir, which made transferring her mother’s home an uncontested case of probate. Some of the arguments used in contested probate cases include the claim that the deceased was not in his or her right mind at the time of a will’s creation. Another method for contesting probate decisions involves contending that the decedent did not follow the law when it came to writing the will. Most probate cases are uncontested, even if there are several heirs vying for the same property.

The probate process includes the following legal steps:

  1. Settlement of all disputes
  2. Gathering the probate property of the deceased
  3. Paying all debts and taxes from revenue generated by property sales
  4. Confirming all legal rights to income, dividends, and other cash disbursements
  5. Transferring any property leftover to legally mandated heirs

Under probate law, people have the right to leave property to anyone, even people outside of the family. In some cases, the deceased might leave property to a favorite charity or donate some property to a local school. However, most states dictate that a spouse is entitled to a certain percentage of property. If the deceased does not abide by state probate law, a judge typically overrules the decedent’s probate desires. Moreover, creditors might have a claim on some or all of a decedent’s property. In Anna’ case, her mother owed little money to creditors, which allowed Anna to recoup the full value of her mother’s home. Some of the costs you can expect to pay during probate include court, attorney, and personal representative fees.

Do not allow costs to deter you from pursuing probate. By hiring a licensed estate law attorney, you receive accurate advice on how to challenge probate, as well as ensuring you receive property in a timely manner.

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