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PROBATE LAW INFORMATION
What happens if the decedent
died without a will?
Probate Court, Probate Will
and Probate Estate
This
probate law information page provides information about probate law, probate court, probate will and probate estate.
Probate is a proceeding in court (called a probate court) where a
decedent's assets are identified and gathered, for the purpose of paying
taxes, settling claims, expenses and other final debts of the estate,
and to finally formally transfer title to property of the decedent to
his or her heirs and/or beneficiaries. Probate proceeding is initiated
in the country of the decedent's legal residence at death, usually at
the instance of the person named executor or any interested party who is
in possession of the original will.
The named executor should
file a petition in the probate court for probate of will, which in
effect is asking the probate court to appoint him or her as executor of
the decedent's estate. In the event that the decedent died intestate,
i.e., he/she died without a will, probate law generally allows anyone
who has vested interest in the estate to come forward and ask the
probate court that he/she be appointed as administrator of the estate.
Although this person can be anybody interested in the decedent's estate,
in most cases it is the surviving spouse, or the decedent's adult child
who comes forward and ask the probate court by way of petition, to
appoint him or her as executor.
Before we will proceed any further, we will take time to
define some terms associated with probate law, and
probate proceedings:
-
Probate estate
- means any
property subject to the authority of the probate court. Assets disposed
of outside the probate process are part of the "non-probate estate."
-
Probate Court - means a
lower level court in the state system, but it might be referred to by
another name, e.g., "surrogate court." The clerk of your county court
system can help you find the right office. If the estate is small, keep
in mind that most states have streamlined procedures that can save the
Executor time and legal fees. Details of the probate process vary
greatly by locality, but the following explanation should be helpful.
-
Surviving Spouse and No
Lineal Descendants. If there is a surviving spouse and no lineal
descendants, the surviving spouse takes all.
-
Surviving spouse and lineal
descendants.
-
If there is a surviving
spouse and one or more lineal descendants (with the lineal descendants
all being the lineal descendants of the surviving spouse as well as the
decedent), the surviving spouse receives the first $20,000 of the
probate estate plus one-half of the rest of the probate estate, and the
lineal descendants share the remaining half. Beginning January 1, 2002,
the $20,000 amount referred to above changes to $60,000.
-
If there is a surviving
spouse and one or more lineal descendants (one or more of which lineal
descendants are not also lineal descendants of the surviving spouse),
the surviving spouse receives one-half of the probate assets and the
lineal descendants share the remaining half.
-
No Surviving Spouse, But
Lineal Descendants. If there is no surviving spouse, but there are
lineal descendants, the lineal descendants share the estate, which is
initially broken into shares at the children's level, with a deceased
child's share going to the descendants of that deceased child.
-
No Surviving Spouse, No
Lineal Descendants. If the decedent left no surviving spouse or lineal
descendants, the probate property goes to the decedent's surviving
parents, and if none, then to the decedent's brothers and sisters and
descendants of any deceased brothers or sisters. The law provides for
further disposition if the decedent is survived by none of these.
-
Exceptions to Above. The
above provisions are subject to certain exceptions for homestead
property, exempt personal property, and a statutory allowance to the
surviving spouse and any lineal descendants or ascendants the decedent
supported. Regarding homestead, if titled in the decedent's name alone,
the surviving spouse receives a life estate in the homestead, with the
lineal descendants of the deceased spouse receiving the homestead
property upon the death of the surviving spouse. If there are no lineal
descendants, the surviving spouse receives full ownership of the
homestead outright.
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