Lao Tsu in his popular speech concerning knowledge once asserts that “to know that you do not know is best. To think you know when you do not is a disease. Recognizing this disease as a disease is to be free of it”. What this simply suggests is that information is key to freedom; and the mind that knows is one that is free.
As property owners, we are often faced with questions about what happens after our demise. We want to allocate our properties to certain groups of individuals, yet we want to secure such from being hijacked by any other unauthorized hand. Essential to the realization of this is the provision; and if necessary validation of a will in a court of competent jurisdiction, upon which probate shall be administered at death. But how then will you know what would be best to do without an adequate knowledge as regards what probate connotes? It is against this backdrop that a few questions as regards everything you need to know about probate is raised among which are: –
1. What exactly is Probate?
Probate is a legal process through which titles is conveyed to a probate asset from a deceased those to whom the assets are given otherwise called heirs or advisees.
2. What constitute Probate Assets?
Any asset that is not transferred to another person by law as in the case of joint tenancy to real property; or not of a contract as in life assurance or a share in trust among others, can be regarded as probate assets.
3. What is a Probate Estate?
Any property left by a deceased which does not fall within the category of transfer by law or of contract as earlier stated, could be regarded as a probate estate upon which a probate law is applicable.
4. Who is an Heir or devisee?
According to the laws of some states within the US, an heir is that person who by law is entitled to intestacy in the process that a person dies without a will which thereby necessitate his assets to be declared as “intestate” upon which an existing state law on inheritance would be applicable. A devisee on its part is any other person aside those qualified to intestate to whom certain property or properties is bequeathed through the will of a decedent.
5. What is Intestate?
Intestate is simply a legal declaration by a court of competent jurisdiction upon a decedent property not covered by will. It confers on the court the right to order an approved administrator or executor to proceed with an existing state law as the model for allocating such properties to beneficiaries.
6. Is probate required in the absence of a Will?
In the absence of a will, the law on probate gives room for a deceased person asset to be declared intestate unless such is a probate asset.
7. How does one determine whether a probate is needed?
After an inventory of all the assets of the deceased is made, a process of elimination shall follow to determine which assets qualify to be probated based on the conditions for probate as earlier stated.
8. What is an Inventory, who can make it and what is it used for?
An inventory is a document containing the list of all assets left by a deceased person, its current value and their respective locations. It is to be made by a personal representative or administrator chosen or approved by a court; which is filed before to court to notify and advise the heirs and devisees of a deceased person in other to allow them provide feedback to it. The purpose of an inventory is to locate and secure those properties so as to protect it from encroachment as well as maintain its value pending the time of allocation to its targeted beneficiaries.
9. Is there a time limit for Probate?
The answer to this is Yes and No. While a state like Nevada has no time limit to file a probate, the case is not the same in Texas which on its part operates a time limit. Generally however, a will contest can be filed at any time; not until the document is submitted to the court for probate before a time limit could be set, usually two years.
10. What court documents is one expected to file for probate in the Ordinary Course?
This is a process that involves filing a petition accompanied by an order to open a probate, to be accompanied by an inventory, address creditors and pay debts on decedent behalf; and then close probate after every necessary document had been submitted. Such document to submit however includes a notice of hearing or publication and a proof of mailing.
11. What is a Petition?
This is a document addressed to a court to request support for an order based some existing laws to that effect.
12. What is an Order?
It is the ruling of the court on an issue brought before it with a petition and in which a supporting fact and applicable law to back the ruling is contained.
13. When is a course not an Ordinary Course?
Any petition requesting additional time to file an inventory and accountings, petition seeking to confirm the sale of a property, and petitions for instructions are issues considered as being outside the scope of an ordinary course.
14. Who is a Personal Representative?
This is an individual approved by a probate court to oversee the properties of decedent from point of probate application to the stage of will execution and property allocation to heirs and devisees. Such could be named in a will or appointed by a court.
15. Can we have more than one personal representative serve concurrently?
Yes, they can.
16. Can a personal representative delegate his/her responsibility?
There is no law that prohibits the delegation of authority conferred on a personal representative since he/she would be held answerable for the consequence of such action in a situation where things go wrong.
East Bay Probate Attorney