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Probate is the legal process which establishes the genuineness of the Last Will and Testament. This process is performed by the Surrogate in the county where the testator or testatrix resides at the time of death.
Probate is a process designed to enable the proper transfer of the decedent’s estate to the rightful beneficiaries. This process is also used to collect any taxes due on the transfer of the property. Outstanding debts can also be settled through probate, and usually a date is set by which time creditors must file any claims that they have. The balance of the estate or property following settlement of these debts and taxes is then distributed to the beneficiaries. The nature of probate means that if there is no estate or property to be distributed then there is no need to go through probate.
Probate is necessary not only to facilitate distribution of property from the Last Will and Testament, but also to allow objections to the Will by other parties. Objections can arise for a variety of reasons, and investigations may also be required for such reasons which include: the possibility that the deceased was not of sound mind when the Will was made; the possibility that another Will was made at a later date; the possibility that the Will was forged or that the decedent’s decision was improperly influenced.
What happens if a person dies without a will?
If a person dies without a Will ("intestate"), the probate court appoints a person to receive all claims against the estate, pay creditors and then distribute all remaining property in accordance with the laws of the state. The major difference between dying testate and dying intestate is that an intestate estate is distributed to beneficiaries in accordance with the distribution plan established by state law; a testate estate (after payment of debts, taxes and costs of administration) is distributed in accordance with the instructions provided by the decedent in his/her Last Will and Testament.
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