What is Probate?

In it’s simplest terms, Probate is a legal process to get a person’s assets after their death to those are entitled to those assets. If a person dies with a valid will the assets would go to persons designated by the “testator”. Testator is the legal name for the person making the will. If the person died without a will then the assets will go to the persons under state law that our lawmakers have decided should receive the property. That is why we something say that if you don’t make a will, the state has one for you. It might not be the one you want but it is there. 

In probate, the legal process is dealing with 3 elements. First, it is determining who will receive our property under the terms of our will and if we don’t have a will who will receive our assets under the state law that provides for people without a will. Second, the process is designed to try and make sure that the people we owe money to at our death get paid in most situations before the property is distributed to those that are entitled to those assets. The third element of the process is to insure that if there are any disputes as to who is entitled to our assets or whether and how much money we owe is resolved by the Court before all the assets are distributed. In most cases, this third element does not come into play because the first and second element have clear answers.

Obviously, this is an oversimplification as there are a number of very specific steps and time frames  in the process but it gives you conceptually a better idea of the framework of the process. This is a not a do it yourself process. I have been called in a few times by someone trying to navigate this legal process without an attorney only to find they have made errors or assumptions which get them into trouble. When you have to clean up someone’s mess it is always more expensive than if the person had come to you in the first place. Please consult an attorney –not aunt Betty or your cousin that had business law in college.