Probate is the legal process that collects and transfers property from the decedent, the person who has passed away, to his or her beneficiaries or heirs. Probate is often sought when real property or financial assets were owned by the decedent, especially when the financial institutions demand Letters Testamentary or Letters of Administration in order to pass on the financial assets to the beneficiaries. An executor or administrator of the estate of the decedent typically carries out these activities under the supervision of a probate court and guidance of a probate attorney.
Probating an Estate
With a Will:
The probate process will determine if there is a valid Will and direct the proper means and direction of distribution. Under a valid Will, the named executor may apply to have the Will probated and for Letters Testamentary, which give the executor the authority to settle the decedent’s estate.
Without a Will:
If there is not a valid Will, then an interested person can apply to the Probate Court to be appointed as an administrator of the estate. Letters of Administration are issued by the Court, which gives the administrator the authority to settle the decedent’s estate in accordance with statutory law.
Types of Probate
The executor/administrator is given more authority to carry out his or her duties. The Court is less involved and more freedom is given to the executor or administrator to carry out the wishes of the decedent.
The court more heavily oversees the probate of an estate. This would happen if there is a dispute among the beneficiaries or heirs, or for other reasons deemed necessary by the court.
Muniment of Title
A cost-efficient alternative to the full probate of a will which is typically used when the only required asset to transfer is a piece of property.
Small Estate Affidavit
This is an alternative to a full administrative probate. It is a cost-efficient way to transfer property to a decedent’s heirs, if the requirements are met.
Affidavit of Heirship
An Affidavit of Heirship is not a formal adjudication like probate is. Rather, it is an affidavit outlining the deceased person’s family history and the identity of heirs. Nothing is filed in the Probate Court. Rather, the affidavits are filed in the public records of any counties in which the decedent owned property.