Probate is the legal process of authenticating and transferring the administration of a deceased person's property. When a property owner passes away, their assets are reviewed by a probate court to determine the final division and distribution of assets to beneficiaries. This process typically involves paperwork and court appearances, with attorneys and court fees paid with the estate's assets. The grant of succession is the first step in the legal process of managing the estate of a deceased person.
The probate court renders the final judgment on the validity of a testator's will and grants its approval, also known as granting probate, to the executor. The evidentiary will then becomes a legal instrument that the executor can enforce in the courts of law if necessary. Probate proceedings will generally begin by looking at whether or not the deceased person has provided a legalized will. A will officially names the executor (or personal representative), usually named in the will, as the holder of the power of attorney to dispose of the testator's assets in the manner specified in the testator's will.
However, through the probate process, a will can be challenged. Succession is a legal process that manages the distribution of assets of a deceased person and is overseen by a probate court. After death, the court appoints an executor named in the will or an administrator (if there is no will) to administer the probate process. In general, if a deceased person's debts exceed their assets, succession does not necessarily begin and alternative measures can be taken.
Succession is an improvement process that proves that a deceased person's will is valid, so that their property can, in due course, be re-titled (US terminology) or transferred to the beneficiaries of the will. For some transactions, an executor may be required to provide a copy of the will as proof of authority to deal with assets that are still in the name of the deceased person, as is invariably the case with transfer or transfer of land. The best way to determine which assets are probate assets (requiring management) is to determine if each asset goes outside the estate. Each state's laws vary, so it's a good idea to consult with an attorney to determine if an estate proceeding is necessary, if the trustee should be subject to bond (a requirement that is often waived in the will), and what reports should be prepared. One way to reduce the burden and headache of probate, or even avoid it altogether, is to create a trust.
Living trusts are of great value as part of estate planning, but not necessarily to avoid succession. Reducing the value of an estate can dramatically simplify the probate process and potentially have positive tax advantages in terms of federal and estate taxes. Some states have procedures that allow small property assets to be transferred through an affidavit or through a simplified probate process. A party may challenge any aspect of testamentary administration, such as a direct challenge to the validity of the will, known as a contest of wills, a challenge to the status of the person acting as personal representative, a challenge to identity of heirs, and a challenge to whether or not you are properly managing an estate. During probate, a court will first authenticate your will and then authorize your executor to pay all debts and taxes and distribute remaining assets accordingly according to instructions you leave. What happens in court depends on complexity of estate but in many cases final hearing will be held in person so that personal representative can present probate case for judge's approval.
