A Discussion on Probate

probate

What is “probate”? Technically, probate is the proving and acceptance by the Court of the Will. After death, the Will is presented to the Probate Court. (See What is a Will and Do You Need One?) Upon approval of the Court, the Will is admitted to probate. Probate also refers to the process by which the decedent’s assets are distributed to the heirs.  A Will is not necessary to the administration of the decedent’s estate. If a person dies without a Will, then Indiana law sets forth an outline for the distribution of assets to family members. The probate process is controlled by the probate laws of the state in which the decedent had legal residence. If property was left at a person’s death, then the probate laws of the state(s) where the property was left will control the probate process.

Not every estate goes through Court proceedings. If the probate estate (less liens and encumbrances) is worth less than $50,000, then formal probate through the Court is not required. Assets that are jointly owned or that have beneficiary designations also avoid probate. A main function of the Probate Court is to see that the decedent’s assets are administered according to the state law and that the rights of the heirs, beneficiaries, and creditors are protected. One advantage to the probate process is that known creditors are sent a timely notice of administration which is also published in the newspaper. If they do not file a claim within three months of the newspaper publication, they cannot later pursue the debt. The probate process terminates when the decedent’s assets have been distributed to the heirs or beneficiaries entitled to it, after the payment of taxes, expenses, and claims.

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