Probate Court

Introduction:

Generations ago, the probate system was considered as one orderly way of transferring the rights to property of a deceased person to his or her heirs. If a person dies after making a Will (“Testate”), the probate court determines whether the Will is valid or not and hears any objections to the will. After the Will is established to be correct, the probate court orders to make payments for all the debts, taxes and cost of administration. After the debts are paid it assures that the remaining property is distributed in accordance to the terms and condition written in the Will. In case if the deceased person has not made a Will (“Intestate”), the probate court then appoints a person who pays the debts and distributes all the remaining property in accordance with the laws of the state.

The major difference between a Testate and Intestate is that, in case of a Testate the property of the deceased is distributes as per his/her Will and in case of as Intestate, it is the State Laws which decides upon the distribution of the property. The cost of probate is either decided by the State Law or by practice and custom in the community. The cost of probate usually ranges from 3% to 7% of the total property value.

In some states of United States, after a person residing in that state dies without a valid will, his property immediately becomes the property of the spouse, if any, without the need for probate. However, in case where the surviving spouse does not automatically succeed to the decedent's property, then it is usually necessary to "probate the estate", whether or not the decedent had made a valid will.

In today’s era probate court are tried to avoid as it has lead to a legal nightmare where lawyers, guardians, estate appraisers and bonding companies bilk widows and orphans out of their inheritance. This happens as the probate court is a matter of public record and there are people who collect such information and sell them to people who prey on widows and try to separate them form their inheritance. Probate procedure takes too long; it may last for several months, sometimes over a year. Till such time, the entire estate is frozen for all practical purposes. The probate procedure is also a costly affair as the probate fees set by the law is usually as a percentage of the gross value of the estate.

Probate can be avoided by executing a living trust. Creating a separate entity to which a person transfers ownership of his entire property does this. The trust so made is controlled by him and can revised at any time. Upon death, the persons named as beneficiaries in the trust automatically acquire ownership of the trust thereby gaining his rights to the property that the trust owns. The trust has also an advantage of preserving the privacy of the deceased and his heirs as well as avoiding some estate tax. Life insurance, joint saving accounts and joint tenancies are other popular ways by which people can avoid probate.