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What is Probate Law?
After a person dies, ownership (the legal title) of his or her property, assets and personal effects must be passed on (legally transferred) to the beneficiaries (heirs) listed in the Will. "Probate" is the legal name given to this process.
First, the Will must be verified as the valid, final dispositive statement of the decedent (the official record of the deceased person's final wishes). The Will names the person or institution appointed to administer (manage) the probate estate process.
The term "probate" is also used in the larger sense of "probating the estate". In this sense, probate means the process by which the decendent's property and assets are gathered and accounted; debts, creditors and estate taxes are paid, and how the remaining property, assets and cash are distributed to the beneficiaries.
The executor named in the Will is in charge of this process, and probate provides an orderly method for administration of the estate. If there is no Will, an administrator is appointed by the probate court to oversee the process. The personal representative (Administrator or Executor) is accountable to the beneficiaries and must perform their administrative duties in a fair and legal manner.
The job of estate administration and accounting must be done regardless of whether an estate goes through the probate process or probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (including revocable Living Trusts) in states where the probate process was perceived as being too slow and too costly. Many U.S. States have adopted the Uniform Probate Code or simplified their probate processes over the years. In such states there is now less reason to employ such probate avoidance techniques.