Death is always a difficult matter to discuss. However, when it comes the time that you have to settle the distribution of your properties among the people you love, this becomes an inescapable topic to talk about. When people die, especially those with a considerable amount of wealth and properties to leave behind, his or her properties usually get distributed among entitled family members. However, this is not something a family can simply talk about over dinner. There is a formal process that involves the official reassignment of property titles and holdings to heirs. This is referred to as the probate process.

What is Probate?

Court Processes 101: What is Probate?

Probate is a term that is used to refer to that act of submitting a will to a court for proper filing. Hence, a person would usually write a will indicating how he or she wants her estates to be distributed. While this is honorable, this is not official unless probated. So if a person wants his or her will to be deemed official by the court, that person needs to consult an attorney for the proper filing of his or her will. But does the probate process apply to those with wills only? The answer is no. When a person was not able to prepare a will before he or she dies, your properties will be distributed among your legitimate heirs based from the laws from the person lived. If there is a will however, the usual probate process applies.

How Does the Probate Process Work?

Although the actual distributor of the assets will not be around anymore one their estate goes through this process, it is still important for them to understand how the process works in order to properly prepare their family. The process has two general stages: the settlement of debts, and the transfer of properties and assets to beneficiaries.  A state court usually handles probate processes, and since these are handled in state courts, the specifications of the process may vary from one state to another. But generally, they follow a single procedure. First, a personal representative of the deceased will have to swear in.  The representative is the person in charge of filing your will to a state court after a person dies. If a person dies without a will however, or if there is no representative specified in the will, the court will assign a representative for the deceased. Next, the public, the creditors and the deceased’s legitimate heirs will be officially notified of that person’s death. Some state courts require a published notice of one’s death in a local paper, while some do it privately among the legitimate heirs only. After this, the representative will have to inventory the deceased’s properties. This is to make sure that the deceased was able to leave sufficient funds and resources to cover the debts and distributions to his or her beneficiaries. Moreover, this will also ensure that all properties are accounted for. Lastly, your properties will then be distributed to your heirs based on your will, or based on the laws of the state in the absence of a will. In some cases, creditors will claim that the deceased have a pending obligation to them. Once these claims are found valid by the court, the creditors will be paid in this order: 1) Costs of estate administration, 2) family allowances, 3) funeral expenses, 4) debt and taxes, and 5) all remaining claims. Whatever is left after this will be distributed accordingly to your heirs.

We all want our loved ones to have a good life after we are gone. The probate process assures that people’s last will and testaments are executed according to the deceased’s liking and abide by the elder laws of the state.

The Law Offices Of Roman Aminov is a Queens and Brooklyn based attorney that focuses on the NY probate process as well as elder law and estate planning. Contact our Queens office at: Law Offices Of Roman Aminov 147-17 Union Turnpike, Flushing, NY 11367 (347) 766-2685. Contact our Brooklyn office at: Law Offices Of Roman Aminov 1600 Avenue M, Brooklyn, NY 11230 (347) 766-2682

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Comments to: Court Processes 101: What Is Probate?
  • January 21, 2014

    As an intellectual property lawyer in NY I know a few things about the probate process. It is extremely important to write a will before one passes away as the probate maze can be very tricky to navigate. Senior citizens also should remember that keeping their intellectual property safe could sometimes be as important as keeping their physical property safe. If you have any more questions about this you check out

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