What is Probate?

It is common to hear the statement, “I want to avoid probate” or “I don’t want my family to go through the horrors of probate.”  When you ask these same individuals “What is probate?” many do not have an answer.

Probate is one of the least understood of court processes.  However, it is a procedure that can affect the family and heirs of every mature adult following his or her death.

Simply stated, probate is a special state court legal process for settling the debts of someone who has died, and distributing the remaining property to rightful heirs.

In a probate, the person who is authorized by the probate court to administer the estate of a deceased person is called a personal representative (or executor or administrator in some states).

A primary purpose of the probate process is to have a personal representative appointed for the deceased individual.  The personal representative must be appointed in order to “sign” the decedent’s name after death.

During life, a person signs a deed or bill of sale to transfer property.  When a person dies, it is still necessary to have some document to show a transfer of title.  In other words, a “signature” of the decedent is necessary.  The probate process provides one method of doing this.  By appointing a personal representative, the court authorizes that person or persons to sign for the deceased individual.

Many people believe that if they have a will there will be no probate.  Nothing could be further from the truth.  Whether you have a will or do not have a will, your estate must go through a probate proceeding if the assets are in your sole name.

The only difference between dying with a will and dying without a will is that if you die with a will, you tell the probate court how you would like to have your property distributed after your death.  If you die without a will, the state legislature tells the probate court how to distribute your estate.  In either case, probate will take place.

When considering whether to “avoid probate” or not, it is important to understand what is being avoided.

In all cases, it is important to be educated about the different estate planning tools.  After you have reviewed the different estate planning possibilities, you can then make a decision as to what is best for you.

WITH A SATELLITE OFFICE NOW IN PANGUITCH.  Jeffery J. McKenna is a local attorney serving clients in Utah, Nevada, and Arizona.  He is a shareholder at the law firm of Barney McKenna and Olmstead.   He is a founding member and former President of the Southern Utah Estate Planning Council. If you have questions regarding this article or if you have a topic you wish to have addressed in this column, you can call 435 628-1711.

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