The term ‘estate’ simply refers to a person’s property or assets. After a person has died, the deceased’s estate will be categorized as either probate or non-probate. Non-probate property passes directly to the beneficiaries. Assets which are subject to the probate process are called the “probate estate”.
What is the probate process?
Each state has some form of probate requirements, whether the deceased died with or without a will. Full administration of the estate requires appearances in court in order to prove the will, appoint a personal representative, to pay the estate debts and taxes and to distribute the remaining probate estate to beneficiaries under the ill or pursuant to the rules of intestacy. When these tasks are carried out under the court’s supervision, this is often referred to as full administration of the estate. Most estates don’t require full administration by the probate court. Many states offer simplified procedures or even no requirement for probate. Whether the probate estate requires full supervision depends on the estate value and types of assets involved.
Why do assets need to be probated?
The purpose of probate is to protect minor children and their assets, to ensure the deceased’s debts and taxes are paid, to ensure the will is valid and to make sure the probate estate is distributed correctly. It also ensures that any person left out of the will and any creditors are notified of the person’s death. This enables them opportunity to contest the will or in the case of creditors, file a claim against the estate.
Difference between non-probate and probate estate
The probate estate includes all of the deceased’s property at the time of death, except for the following:
- Jointly owned property
- Assets held in a trust
- Life insurance (where the designated beneficiary is not the deceased estate)
- Pay on Death (POD) accounts which specified a beneficiary
- Social Security survivor’s benefits
- Veteran’s benefits
- Employee Benefits (most states give employers authority to pay sums due to the employee directly to the spouse or next of kin, thus not forming part of the probate estate).
- Property given away before death
Who manages the probate estate?
The person named as ‘executor’ in the decedent’s will is given the duty to hold and distribute the estate assets. If there is no will or no valid appointment, the probate court will appoint an administrator to undertake these tasks. The executor and the administrator have the same function, except one is appointed by will and the other by the court. Both can be called the ‘personal representative’ of the estate.
Requirements by state
To find out the requirements and process of administering a probate estate in your state, follow one of the links below: