Probate is a legal proceeding by which a deceased person’s property is distributed to the rightful heirs and/or beneficiaries. Probate proceedings are governed by the law of the state where the deceased person resided at the time of death and by the probate laws of any other state where the property was owned. The main purpose of probate is transferring title of the decedent’s property to the heirs and/or beneficiaries. If the decedent had no assets, there is typically no need for probate. Probate also allows for collection of taxes due and payment of outstanding debts. The term “probate” refers to a “proving” of the existence of a valid Will or determining and “proving” who one’s legal heirs are if there is no Will.
All property of a decedent may not be subject to the probate process. Life insurance, retirement accounts, real estate held as joint tenants with right of survivorship and other joint tenancy property can pass directly to the appropriate beneficiary automatically. The involvement of the court to transfer such property is not required. Property held in the trust is not subject to probate. A bank account or motor vehicle title may also specify a death beneficiary and thus be exempt from the probate process.
An Executor or Personal Representative (sometimes referred to as “The PR”) is the person or institution named in a will and appointed by a court to carry out the will’s instructions and to handle all of the matters of probate. Duties of the Personal Representative include making an inventory and appraisal of all property and appropriately distributing the estate.