The Probate Process in the United States

The Probate Process in the United States

What happens to our property when we die?  In some states, after someone dies, his or her property immediately transfers to the spouse, if he or she has one, without going through the probate court process.  In these cases, the state recognizes a married couple's property as community property and the transfer of ownership from two to one is relatively painless and quick.  However, in cases where the transfer of property does not automatically go to the surviving spouse, then it is usually necessary for the estate to go through probate, whether or not the deceased or "decedent" left a will.  If the deceased had a will, then the probate court would have jurisdiction over the estate and would supervise the process of probating the estate, which would ensure that all the debts and taxes against the estate were paid and that the remaining assets and property was distributed among the heirs and beneficiaries in accordance with the directions of the will and the laws of the state involved.

If a person makes a will, he or she will usually name an "executor," who carries out the instructions written in the will.  The primary task of the executor is to oversee the decedent's assets through the probate process.  On the other hand, if there is not will, or if an executor is not named in the will, then the probate court will appoint an executor or a personal representative for the case.  Historically, the personal representative of the "intestate," (without a will) estate is called an "administrator," while the personal representative of the "testate," (with a will) estate without an executor is the "administer with the will annexed" or "administer c.t.a."

Not all of a decedent's property necessarily goes through the probate process.  Many of the assets of an estate can pass directly to a beneficiary if they are contractually set up that way.  For instance, an insurance policy can specifically name a beneficiary who is "payable on death" of the decedent.  A bank account can be set up to be "jointly owned with right of survivorship," meaning if one owner dies, then the remaining balance of the account will automatically transfer ownership to the surviving owner.  Also, you can set up your property to be held in a "living trust," which means the property does not have to go through probate.  In this case, the personal representative would provide the proper documentation on the property to the probate court and the property passes onto the heir quickly.

The first task of the personal representative in a probate case is to inventory and authenticate the decedent's assets and property.  Then, he or she must pay any outstanding taxes against the estate.  The representative then collects any claims or debts against the estate and sifts through them one by one, authenticating, then paying the outstanding debts.  After that lengthy process, then the personal representative distributes the remaining assets to the heirs, according to the laws of the state where the probate court is located.  The entire process of probate can take anywhere from, on average, one year to several years to complete.