What is Probate?

Cesar Montalvo Real Estate Law

Probate is the legal process of transferring of property upon a person’s death. Although probate customs and laws have changed over time, the purpose has remained much the same: people formalize their intentions as to the transfer of their property at the time of their death (typically in a will), their property is collected, certain debts are paid from the estate, and the property is distributed.

What Happens in Probate?

The probate process may be contested or uncontested. Most contested issues generally arise in the probate process because a disgruntled heir is seeking a larger share of the decedent’s property than that he or she actually received. Arguments often raised include: the decedent may have been improperly influenced in making gifts; the decedent did not know what they were doing (insufficient mental capacity) at the time the will was executed; and the decedent did not follow the necessary legal formalities in drafting his or her will. The majority of probated estates, however, are uncontested. 

The basic process of probating an estate includes:

  • Collecting all probate property of the decedent;
  • Paying all debts, claims and taxes owed by the estate;
  • Collecting all rights to income, dividends, etc.;
  • Settling any disputes; and
  • Distributing or transferring the remaining property to the heirs.

Usually, the decedent names a person (executor) to take over the management of his or her affairs upon death. If the decedent fails to name an executor, the court will appoint a personal representative, or administrator, to settle the estate.

Learn more about how The Law Offices of Cesar A. Montalvo can help you through the probate process.