When a person dies, the executor of his will initiates a probate proceeding. A probate proceeding is needed to ensure the deceased testator’s assets are distributed properly and in an orderly fashion. It can also protect the deceased’s estate, pay all debts and taxes owed by the testator, and resolve questions regarding who is entitled to what assets.
What is an Estate?
When a person dies, they leave behind an estate. An estate consists of all property that was only titled in the deceased’s name. Any property that had provision on the title regarding ownership for others does not go through probate. If an estate includes land or if the total value of the estate exceeds $100,000, it must go through probate.
What is Probate?
Probate is a court-supervised process for paying bills and distributing property after a testator’s death. A “probate” estate is one that must be probated to distribute the property. This is sometimes confused with a “taxable” estate, which is one that must pay an “estate tax” or “inheritance tax” to either the state or federal government. If your estate is less than $100,000 and does not need to go through probate, it still may be taxable. Conversely, you could have a taxable estate that does not need to be probated.
Probate may be avoided by giving all of your property away before you die, or owning all your property jointly with someone you expect to survive you. You may also title all your property in the name of a trust to avoid probate.
If you die without a will and leave property that requires probate, the law of “intestate succession” will determine who gets your property.
The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.