Probate Law

Probate is a process which most people will at some point be subject but which they will not likely have any recollection. Probate occurs after one dies. Assuming a person has accumulated at least a little real property in their life, upon death, their estate will undergo probate.

What is Probate?

Probate is a judicial process, it is the legal means by which the courts determine how a decedents assets and liabilities are to be distributed. During the process, the estate will be valued and beneficiaries will be identified and contacted. An Executor will be in charge of this process who will also manage any debts to the estate.

Is Probate Necessary if there is a Will?

In some cases, no. Although a will is a document which often plays a key role in probate hearings, if certain legal requirements are met, an estate may not have to go through probate. For instance, a person could write a Living Trust, name beneficiaries to all accounts, and enter into a joint Tenancy with Survivorship Rights. These would be steps which would make probate pointless.

Is Probate Needed if there is a Trust?

If there is only a trust, then no. Probate is required on property held by the deceased upon death. However, a trust transfers ownership of property automatically upon the passage of certain events, such as death. Ownership in the Trust transfers at that point with no need of a ruling from a probate court.

Can Probate be Avoided in New Mexico?

New Mexico makes it easy to avoid probate court if that is what someone wants to do. Nearly all assets can be registered or recorded as transfer-on-death. Homes, securities, and bank accounts can all be set up like this so that upon death, control immediately transfers to another. Once all property belongs to another, there is no longer a need for probate. Note: The only property which may not be transferred using the “On-death” process are automobiles.

However, short of this, everyone must go through probate in New Mexico. However, the state has implemented a simplified procedure for certain “small estates.”

Can Probate be Avoided in Texas?

As with New Mexico, Texas allows pay-on-death and transfer-on-death procedures for those who want to handle their estates the old-fashioned way. However, this process is not permitted in the case of securities and automobiles.

Texas also has in place simplified procedures for those with small estates.

What Should be Expected in Probate Court?

Probate court is nothing to be concerned with. It is simply a formal procedure for dividing up an estate so that any with a valid claim can have an opportunity to collect. Once creditors are out of the way, remaining assets can then be divided according to either state law or the will.

As with any court procedure, the probate case is added to the court docket. As the cases are handled, the court begins to slowly clear. Once the court reaches your case, it will be handled. Any with a claim will have a chance to present it and once all claims are settled, the judge will manage the division of assets. Once that is done, the case is sent to the clerk for processing and filing.

Sound boring? It is. Which is one of the best reasons to have AARLaw handle probate for you. You have better things to do with your time.

What Assets are Subject to Probate?

Assets subject to probate include anything not in a trust or assigned to a beneficiary. The assets which are subject to probate include:

  • Bank accounts
  • Stocks
  • Bonds
  • Investment accounts
  • Vehicles
  • Real Estate
  • Virtual property
  • Boats
  • Business Interests
  • Cash

Who Handles Creditors During Probate?

During probate, an executor will be assigned by the court. The executor will be responsible for contacting all with claims against the property, ensuring that debts are managed or settled, and that assets are properly accounted for.

Does Probate Affect Insurance Proceeds?

Insurance proceeds which are delivered to a named beneficiary are not subject to probate. However, insurance policies which did not identify a beneficiary will see the proceeds added to the estate. The beneficiary does not have to be irrevocable to qualify to avoid going through probate. If the named beneficiary dies prior to the decedent, the proceeds enter probate.

Should You Get an Attorney to Handle Probate?

AARLaw logoWhether you retain an attorney to handle probate on your behalf or not depends on several factors. The size and nature of the estate will matter as will any partnerships in force at the time of death. Whether there were trusts, stocks, bonds, liquid assets, foreign assets…all these play a role regarding the need for a probate attorney.

The bottom line is that if you think you may need an attorney to handle probate, you definitely want to discuss your situation with AARLaw today.