Probate is a general term that represents how property is disposed of after death. Probate of an estate is the process by which the estate is legally distributed to designated heirs, and legal title of property is transferred from an estate to heirs and beneficiaries according to probate laws. During the probate process, the probate court can rule on the validity of a will, appoint an administrator, identify heirs, and distribute property. The cost to probate an estate is either set by state law or by practice and custom in your community. The typical cost to probate an estate is in the range of 3 to 7 percent of the total estate value.
The first major issue a probate court must resolve is whether a person has a valid will. The major difference between dying with and without a will is how the property will be distributed. If a person dies with a will, or testate, the probate court determines if that will is valid. The probate court can also hear and resolve any objections to the will. To reduce objections and bickering over wills, many wills include penalties to heirs who challenge the will during probate. Upon determining that a will is valid, the executor of the estate takes care of the estate's final affairs and distributes the remaining property in accordance with the instructions provided by the decedent in the will. On the other hand, if a person dies without a will, or intestate, the probate court appoints a personal representative (frequently called an administrator or administratrix) to receive all claims against the estate, pay creditors, and then distribute the remaining property in accordance with state probate laws.
The probate court will also identify heirs, either based on an established will or according to law. Probate law states that friends, or even people who are practically like family, do not qualify as heirs, meaning that if a person dies without a will, such individuals will not inherit from the deceased's estate. However, if a will is prepared with specific instructions to give friends gifts from your estate, the administrator of the will supervises the probate process to ensure that property remaining after probate expenses is distributed in accordance with those terms and conditions as laid out in the will.
Although probate laws are fairly straightforward, wills are often contested during the probate process. A contested probate of an estate will only increase the expenses associated with the process, which means fewer assets or funds will be available for distribution to rightful heirs at a later time. To avoid contested probate matters, you may want to consult with an estate planning attorney who can help draft a will that reduces challenges. They may also offer possible estate planning alternatives to make the probate process easier and less expensive.