August 2, 2012
Article provided by Christian Dempsey, Escrow of the West
The big question is WHY someone would need to “probate” a property once someone passes away.
In order to sell a Decedent’s property, the heirs, if there are any, must hire an attorney that specializes in probate in order to set up the Decedent’s estate. If someone passes away with a will, it is obviously much easier on the appointed Executor or Executrix to handle that individual’s final affairs in accordance with their wishes. However, many, many people die without creating a will. In that event, the individual passes away “intestate,” or without a will and the Probate Attorney must set up the estate to have an Administrator appointed to handle the final affairs of the Decedent.
The probate that the attorney establishes for the Decedent can address many issues in addition to real property, including assets such as stock, personal property, cash in banks, etc. If one dies intestate or without a will, then all legal heirs are located by “heir hunters” (if necessary) and the total assets of the estate are divided amongst the legal heirs, whether or not that was the intention of the Decedent.
A common misconception is that if one doesn’t have children, it is not necessary to make out a will. However, once real property and large dollar amounts are involved, it is critical that one creates a will or a trust. Although the probate process can be timely and involved, and truly this is dependent on the heirs and who stands to inherit what, the attorney fees are absolutely statutory and are pre-established in accordance with the probate code, based on the size of the individual estate.
There are many arguments and issues, both pro and con, in going through the probate process or setting up and establishing a trust. The main issue to remember with regard to the probate process is that it is highly regulated and scrutinized by the Court in order to keep the individual representing the estate honest and that all matters are handled according to the last wishes of the Decedent. In a situation where the Decedent has transferred all of their assets into a trust, all of the heirs are relying on the honesty and integrity of the successors trustee(s) to comply with the terms of the Decedent’s trust agreement.