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Probate is the court process of transferring assets from a deceased person to living persons.  Most probate courts are parts of the state court system.  Many are part of what is called “Orphan’s Court.”  The division that specifically handles the probate process is often called the “Register of Wills.”

When a person dies and leaves property that must be transferred through a Will, or dies with property in their name and no will, the Probate Court is where the process of getting that property to their beneficiaries is done.  (See the article about “Non-probate Property” to learn the difference.)

Many people do not know that trying to transfer property through their will almost guarantees that one must go to Probate Court. (That being said, having a will is much better than not having a will.)

For example, if a person dies with a bank account in their name alone. They have no other person on the title, and has not designated a beneficiary.  The probate court is where their heirs must go to get the money.  If you die with your sole name on your deed, your heirs must go to probate to get title to that property.

If a person dies without a Will, their probate estate will be transferred according to the law of intestacy of their domicile state.  Each state law governs how the property of a person who leave no will and no beneficiary designations is distributed. 

Probate begins with the filing of a Petition for Probate.  The petitioner, usually the next of kin, files a form prescribed by the court that gives their name, address, the name of the deceased and their relationship. It may require the listing of the known assets and liabilities of the deceased.  The petition asks for the appointment of a person, called the Personal Representative, to administer the estate.

Notice of appointment must be given to all known creditors, heirs and legatees if there is a Will. Most probate courts require publication of the Notice of Appointment, Notice to Creditors and Notice to Unknown Heirs in newspaper(s) of general circulation.  After a period of time, ranging from 30 days to 6 months, most unsecured claims not filed against the estate are barred. In some states a Final Account must be filed and approved by the Court. After approval and notice to heirs, the Personal Representative is then allowed to distribute the assets according to the terms of the will or according to law.

The entire process is open to the public.  It takes a minimum of six months and often years to finalize. Most people would prefer privacy and a more efficient method of transferring property. This can be done by using a competent attorney and careful planning. 

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