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What is Probate?

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  • Written By: Jane Harmon
  • Edited By: Niki Foster
  • Last Modified Date: 11 April 2013
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When someone dies, with or without a will, their goods and property are distributed to their heirs and creditors. This process is called probate, and the legal steps can vary from jurisdiction to jurisdiction.

If the deceased has a will, it will name an executor, a person designated to see that the terms of the will are carried out. The executor can be a child of the deceased or other relative, or a completely unrelated person. The lawyer who drew up the will, if any, can be a valuable resource in guiding the executor through all the legal necessities of probate. His or her fee will be paid directly by the estate.

Probate has several phases. The executor must first make an accounting of all the property and assets of the deceased. Then creditors are informed of the death of the deceased and notified that they have a specific time frame in which they must present their accounting to the estate. The estate settles these debts out of the assets and distributes the remainder according to the will of the deceased. If there is no will, state law will determine how the assets are distributed according to degree of relationship with the deceased.

There is usually a specific period of time, such as six months, during which probate is usually held open. During this time, creditors must bill the estate, not the heirs, to recover any monies owed. Some less than scrupulous creditors will try to collect directly from the heirs, but they should be referred at once to the lawyer for the estate or the estate executor. If the debts outweigh the assets of the estate, the courts will determine how to distribute the funds to the creditors. There is no legal obligation on the part of the heirs to pay debts that the estate cannot otherwise cover.

Some creditors, such as major credit card companies, are so entangled in bureaucracy that they are unable to get their accounting in prior to the close of probate. If this happens, they are out of luck; they cannot require the heirs to pay the debt. Unless a child co-signed a loan for a parent, for example, he or she cannot be held accountable for his or her parents' debts upon their death. There have been cases of lenders going after the children of creditors to try to recover their losses, however. These attempts are strictly illegal in the US and should be reported to the state attorney.

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maxy
Post 18

My grandmother died years ago and left money in a bank account in another state. My mother does not know how to go about retrieving the money in this state. How long does she have before she will not be able to get the money?

anon314623
Post 15

My grandfather passed away nine years ago, without any will. He has three sons and one daughter and my grandmother is alive. After his death until now, my father is taking care of every need of the house. His two brothers are separated, and his sister is unmarried. To whom the property will go?

anon314523
Post 14

My husband and mother died 20 hours apart. My sister knowing I was tied up with Cancer and my husband came in the final chapter and had mom change her will so she got everything.

I was my mom's only caregiver for 20-plus years. We lived two miles apart. My sister Linda had zero contact with my mom for 14 plus years.

Now when I tried to fight it, the attorneys did nothing for me and charged a lot. Now they're saying it was the lady bird clause, but that too was done by an attorney my sister was working for at the time. My sister is a tired old woman with no one in her life. God will prevail.

anon305900
Post 13

My friend's mom died two years ago and her sister has the will and lives in the house still. The sister will not answer calls and said her mom sold her kids the house for $1.00. But it's been two years and the house is still in the deceased dad's name. How does she go about getting this will probated? She is so upset because the sister is not even paying the taxes on the house.

anon302367
Post 12

My mom died in January 2012, and I just got the taxes. She had left land that wasn't listed in the trust to me. I'm the sole heir. How can I get this land in my name without being hustled by am attorney for an arm and a leg?

The land, I believe, is worth less than $60,000. Who can help me cheap? I just spoke to a legal zoom lawyer who said can file a head stat. I'm not even sure what that is, but he wants a lot of money. Where do I turn?

anon278013
Post 11

Comparing the two, that is, a will and a children's trust, which one is better in terms of protecting the rights of children? Can either of them be challenged at law by any of my relatives especially where they are of the opinion that they should have inherited something from me?

anon275663
Post 10

My wife died eight years before her mother died. When her Mom died, my wife was one of four beneficiaries.

Now I have been asked by one of my wife's siblings to forward her death certificate to her after she tells me that "there is nothing left in probate due to all the medical bills". Which poses this question: If there is nothing in probate, why does she need my wife's death certificate?

anon151020
Post 9

my mom died in january and left a will to three of us children. my sister had a general warranty deed with retained enhanced life estate done on my mother's house in December, while she was very ill.

mom did not sign the deed of her house. my sister is executor of the will and did not probate the will at all. now she claims she can sell the house which is in her name and all we have to do is sign heirship forms for the car mom had and get what we want out of house and estate sale to sell the rest of belongings in the house.

question? this is under texas law? is this all legal at all. she said she has power of attorney. i read it ended when mom died. what is legal here in texas on this matter? thanks a lot for any help. A lawyer i called took a week of my time and will not handle the case.

anon90059
Post 8

my dad left a will, has a half share in a house and 20,000 in the bank. how can i get cheap probate? is there a way of doing it myself?

anon54510
Post 7

my father died without a will and had deeded his house to his niece the month before he died but it was not recorded at court house. do i have a way to void this deed and get the property as his son?

anon43543
Post 6

my father died leaving a business. i'm aware he had a will but my brother did not report it or tell me and the business is still operating under deceased father's social security number. where do i go and how do i start investigating? his business is a multi-million dollar business and it is not reporting all income -- more like tax evasion!

anon39547
Post 5

My father died in May of 2008, without a will. He owned very little property or money, and I didn't even go through probate. Now a finance company that apparently loaned him money to buy a television a few months before he died is sending me bills for 1200 dollars, in the name of his estate. Am I obligated to pay this?

anon14044
Post 4

my grandfather signed a life estate deed to his land back in 2001. now the previous owner wants to make my grandma pay rent for the housing or she will have to move...since she was married to my grandfather, doesnt the land belong to her now? Why should she have to pay anything since the land was her husbands?

anon1429
Post 3

My father passed over one year ago without a legal will, and my mother passed three years ago. My father's estate has been plagued by judiuary, government delays and lack of information by the government, to despence of estate funds, due to estate taxes, and no assessments by the taxation department of Canada. As a legal family member of the deceased, how can I assist in the process, to get government settlements on my father's estate.

pkb1203
Post 1

my father died after a long illness and left behind several credit bills caused by medicines he needed and my mother does not have enough money out of her social security to pay these bills. it has become an extreme hardship on her. these were my dads only cards. there is no any money left after his funeral to pay off his debts. what can she do short of selling her home?

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