FAQ's

What is Probate?

Probate is a court-sanctioned process that allows the transfer of a deceased person’s property to the living heirs. Probate proceedings serve many purposes such as gathering and safeguarding assets, paying all legitimate creditors, and distributing the Estate’s assets to the appropriate heirs.

What is the purpose of probate?

A probate proceeding serves various functions, including the collection and protection of the deceased person’s assets, settling the legitimate debts owed by the deceased, and allocating the estate’s assets to the appropriate beneficiaries. Probate is a court-approved procedure that facilitates the transfer of the deceased individual’s property to the living heirs. To draw a parallel in real estate terms, when selling a property, the homeowner typically signs a deed to transfer ownership to the buyer. However, if the homeowner has passed away, the court must appoint a Personal Representative, who could be an executor designated in the will/trust, or an administrator in the absence of a will. This appointed individual possesses the legal authority to sign the deed, effecting the transfer of the house to the buyer, all under the court’s supervision.In essence, probate acts as a form of “title clearance” for both real and personal property, as these assets are initially registered under the deceased individual’s name. Consequently, the court appoints a Personal Representative to act on behalf of the deceased person

My parents created a basic Will but not a Trust ,is it the same thing?

Many people confuse Wills and Trusts. If the property was held inside a Trust, no probate is required for disposing the real property. If the home was not placed in a trust, the home will likely need to go through the probate proceedings. If the property was placed in a trust, the home can be sold by the ” Executor” of the estate, and avoid the lengthy probate process. The person in charge of selling a deceased owners home absent of a trust is assigned the role as the ” personal representative” and labeled as an ” administrator” in the eyes of the probate court.

My mother/ father just passed away and I beleive they left the property to me, what should I do?

If you are not sure if the property is in a trust, or your loved ones created a trust and didn’t tell you, you should pull a ” grant deed” on the property. I can help you with this step!

Ok, I found out my loved ones created a trust and beleive I am the person in charge, now what?

You will need a copy of the trust to move forward with selling the property. SEARCH THE HOUSE! . Unlike recorded title documents in the county archives, Trusts are not recorded. You will need to locate a copy of the trust. Ask the family attorney or CPA that might have have worked on the case.

Are there exceptions to not having to go through the probate process?

Yes, as explained above, having the home vested in a trust can avoid this lenghty process. There are other exceptions to avoiding probate proceedings depending on how the property title is held. You want to identify if the property was held in any of the following methods. ” Joint Tenants, Tenants in Common, Community Property, Community Property w/ right of survivorship, transfer on death deed, Spousal Petitions. If you beleive the home was in a trust and the property was refinanced and not put back into the Trust, you can file what is called a ” Heggstad Petition” to get the home back in the trust. A qualified attorney can help you with this filing.

Do you have a probate illustration chart?

Provided by Paul Horn, Probate Attorney and CPA