Albany Probate Attorneys, FAQs – Postmortem Planning, Assets, Liabilities, Creditors, Taxation

What is probate?

Probate is the process that transfers legal title of property from the estate of a person who has died to his or her proper beneficiaries. The term probate refers to a proving of the existence of a valid will, or determining and proving whom one's legal heirs are if there is no will. In addition, probate is the process used to determine who gets property.

Why is probate necessary?

The primary function of probate is transferring title of the decedent’s property to his heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate. Another function of probate is to provide for the collection of any taxes due because of the deceased's death or on the transfer of his or her property. The probate process provides a mechanism for paying outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims and for the distribution of the remainder of the estate's property to ones' rightful heirs.

Can I handle probate without a lawyer?

While there is no requirement to use a lawyer, probate is a formal procedure. Minor matters or any delays or inconveniences can be upsetting; pose issues of fairness, and create unfounded suspicion among family members. Therefore, it generally is a very good idea to hire a lawyer to handle probate.

How long does probate take?

The duration varies with the size and complexity of the estate and the difficulty or ease in locating the beneficiaries. If there is a will contest, or anyone objects to any actions of the Personal Representative, things can drag out. Some matters have taken decades to resolve.

How can I avoid probate of my own estate?

One approach to avoid probate is through use of a living trust that holds legal title to some or all of your property at the time of your death. The trust is a legal entity, which survives you after your death.

Does all property have to go through probate?

No. Most states allow a limited amount of several types of property to pass to beneficiaries free of probate. Real and personal property owned as a joint tenant passes to the surviving co-owners without going through probate. Other types of benefits, such as a life insurance policies or annuity payable directly to a named beneficiary bypass probate. In addition, money from IRAs, Keoghs, and 401(k) accounts transfer automatically, outside probate, to the persons named as beneficiaries.

Where is probate handled?

Probate usually occurs in the appropriate court in the State and County where the deceased permanently resided at the time of death. The probate court usually handles all the personal property the deceased owned, plus all of the real estate that the deceased owned that is located in that same state.