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Defining the probate process

September 6, 2011
By SYLVIA HELDRETH - Real Estate Law , Cape Coral Daily Breeze

Q: I've heard the word "probate" a dozen times but I'm still not sure what it means or why I need to avoid it.

A: Probate is the legal process of settling the estate of a person who is deceased. The process involves resolving all claims against the estate and distributing the decedents property.

According to the Online Etymolo-gy Dictionary, the first official definition of the word, "official proving of a will," dates back to 1463 and originates from the classic Latin word: "probates," meaning "a thing proved." It also traces its earlier roots from the year 1176 to the word "prouwe," and to the old French word "prover." It is a very old word.

When a person dies without a valid will or trust, his or her property immediately becomes the property of the spouse, if one exists, without the need for probate. In some non-community property states, the surviving spouse does not automatically succeed to the decedent's property and it becomes necessary to probate the estate. This is sometimes even necessary if the deceased had a valid will. To make certain that the decedent's property is distributed according to the direction of his will and the laws of the state, a court, usually called a probate court, supervises the probate process.

The executor, a person tasked by the will to carry out the instructions laid out in the will, guides the decedent's assets throughout the probate process. If there is no will, or if the will does not name an executor, then the court having jurisdiction of the decedent's estate can appoint one.

Some of the decedent's property may never enter probate because it passes to another person contractually, such as the death proceeds of an insurance policy. This is because the decedent's wishes were made clear when he/she named the beneficiary of the policy. Property held in a living trust also avoids a full probate. In these cases, a personal representative provides documentation to the court that the property is prevented from entering probate.

Indeed, probate is a very old word and the process can be lengthy and expensive. This is why people try to avoid probate. You may want to seek the advice of an attorney who understands the issues of wills, estates and trusts if you wish to reduce the need for probate.

Attorney Sylvia Heldreth is a certified specialist in real estate law. Her office is located at 1215 Miramar St., in Cape Coral.

This article is not intended as specific legal advice to anyone and is based upon facts that change from time to time. Individuals should seek legal counsel before acting upon any matter involving the law.



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