What is probate?
Probate is a judicial process, which is necessary when someone dies leaving assets in their name. This is known as a person’s estate. There are ways to avoid probate by having one’s assets transfer automatically upon death, and this can be done with estate planning. However, we are just here to discuss the basics of the probate process today.
Probate is state specific, and the Probate Code adopted in each state governs the process. This blog will touch on some of the general aspects of probate.
The first key determination is whether or not the deceased person had a valid will in place prior to their death. To be valid, a will must comply with certain formalities, and it is important to have a licensed attorney evaluate the will to advise if it is valid. If there is a valid will, that document governs much of the important decisions in the process, like who will be the personal representative, and who will receive what assets, to name a few.
If there is not a will, this is known as intestate, and the probate code covers that as well. There are laws that determine who has priority to what if there is no will.
The next step is to identify the immediate family. Is there a surviving spouse? Are there lineal descendants? Are they minors? These people may have rights regardless of the situation, and this must be carefully considered in the process.
After we have a clear picture the parties involved, it is important to determine what county has proper venue and jurisdiction. Normally, it is where the deceased lived at the time of death.
Then, we look to see what assets are in the estate, and what liabilities, or debts, are left. This is important because the assets are subject to valid creditor claims that file timely claims.
Finally, after creditor claims are either barred or satisfied, the assets of the estate may be paid to the heirs or beneficiaries. Once the assets are paid out, the estate can be discharged, and the case may be closed.
If you have any questions about the process, please feel free to contact my firm to discuss. We practice probate law in Florida and California. I am licensed in both states, and am here to help answer your questions and guide you through the probate process. Please contact my main office in Central Florida at 407-960-7373, or email me at Dan@haynesanddepaz.com. Thank you for reading our blogs, and you can check out more here. http://www.haynesanddepaz.com/blog/ Florida Probate - California Probate