Probate is the court-supervised process of authenticating a last will and testament if the deceased made one. It includes locating and determining the value of the person’s assets, paying their final bills and taxes, and distributing the remainder of the estate to their rightful beneficiaries. In a probate process, a will is “proved” in a court of law. It is then legally accepted as a valid public document, one that is the true last testament of the deceased.
A probate court is where the legal validity of a deceased person’s will is decided and given approval. This is known as ‘granting probate.’ In this act of granting probate, the probated will has become a legal instrument that may be enforced by the executor in the law courts if necessary. The court officially appoints the executor of the will (i.e., the person representing the will), who is usually named in the will. Once this occurs, the will is a legal instrument. The executor of the will has the legal power to dispose of the deceased person’s assets in the manner specified in the will and can enforce it in a court of law.
There are many factors that occur in the probate process and it can become rather complex. Creditors of the deceased must be notified, legal notices published, real and/or other property may need to be sold in order to distribute the assets pursuant to the will and to pay debts. Taxes, including estate taxes, gift taxes or inheritance taxes will need to be paid if the estate exceeds various thresholds. Some assets can be directly transferred from deceased to beneficiary, including financial assets like life insurance and physical things of financial and/or personal value. Other assets, for example funds in tax sheltered retirement accounts, will often have ‘pay upon death’ or ‘transfer upon death’ arrangements, which keeps them out of probate.
A will may be contested through the probate process and there may be lawsuits in the wake of a death. In contentious probate cases separate procedures are usually required. Also note that, in the absence of a legal will, an estate is settled according to ‘intestacy’ laws of the state of Illinois.
Of course, there are time factors involved in the probate process and the rights of beneficiaries must be respected. In a complex and contentious case, it cannot be permitted to drag on indefinitely.
As you can see, the probate process can be quite complex and requires a lot of legal know-how. You will need a probate lawyer who can save time and reduce stress while safeguarding your rights. The Law Offices of EDWARD M. FARMER will be pleased to help you.
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