What is Probate?

Probate is the legal process for reviewing the assets of a deceased person and determining inheritors. Probate proceedings typically focus on the existence, authenticity, and validity of a will. Probate can be initiated with or without a will. A proceeding is usually essential when a deceased person’s remaining estate is of high value even when there is a will. Individuals can avoid exorbitant probate costs and complexities by having an easily authenticated will or using investment vehicles that do not require probate.

How Do Probate Works?

Probate is the analysis and transfer administration of estate assets previously owned by a deceased person. When a property owner dies, their assets are commonly reviewed by a probate court. This court provides the final ruling on the division and distribution of assets to beneficiaries. A probate proceeding will typically begin by analyzing whether the deceased person has provided a legalized will. In many cases, the deceased person has established documentation, which contains instructions on how their assets should be distributed after death. However, in some cases, the deceased does not leave a will. There are special circumstances that occur with both situations that we've listed below.

Probate With a Will

A deceased person with a will is known as a testator. When a testator dies, the executor is responsible for initiating the probate process. The executor is typically a family member. The will can also provide details on a specified executor.

Probate Without a Will

When a person dies without a will, he is said to have died intestate. An intestate estate is also one where the will presented to the court has been deemed to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to state laws. If a deceased person has no assets, probate may not be necessary.

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What is a Living Will?

A Living Will is a document in which you can specify the medical treatments you wish to receive if you become incapacitated and can’t communicate.

As such, this document helps health care workers understand when to proceed with certain treatments when you’re:

• In a coma

• Terminally ill or injured

• In the late stages of dementia

• Near the end of life

The terms of your directive are binding once you sign the document.

What is a Medical Power of Attorney? A Medical Power of Attorney is a document that appoints someone to make medical decisions on your behalf. This person becomes known as your health care agent or proxy. If you’re incapacitated, your health care agent generally has the authority to:

• Consent or refuse consent to treatments (per your Living Will)

• Receive/review your medical and hospital records

• Sign any medical releases or health care documents.

A Medical Power of Attorney is also known as a Durable Power of Attorney for Health Care. For decision-making powers over legal, financial, and other personal areas of your life, use a Power of Attorney.

Why should I create a Living Will?

Creating a Living Will gives you control when you can’t speak for yourself and saves your family from making tough choices on your behalf.

Plus, when implementing a Medical Power of Attorney, you can discuss your wishes with someone you trust before you’re incapacitated. This way, you can trust they’ll make decisions in your best interest.

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What is a Last Will and Testament?

A Last Will and Testament is a legal document that allows you to control how your estate will be distributed after you pass away. A Last Will also enables you to appoint a guardian for your minor children as well as provide instructions and set aside funds for the care of any pets you may have.

Who should use a Last Will?

A Last Will and Testament should be used by anyone over the age of 18 to help avoid potential disputes or confusion regarding your estate. A Last Will is especially important for parents with minor children as it will allow you to appoint a guardian and have a say in how your children will be raised.

Why is a Last Will Important?

A Last Will allows you to give instructions on who will get your property after your death, appoint the person who will administer your estate, and appoint a guardian for any minor children you may have. If you die without a valid Will, your property will instead be distributed by a court-appointed administrator according to a pre-determined formula (defined in state law).

Without a Will, you would not be able to give your property to a non-relative or to exclude relatives. If you have no Will and there are no relatives at the time of your death, your property will go to the state.

If you die without a valid Will, a court-appointed administrator distributes your estate according to a pre-determined formula (defined in state law). For example, the California probate code states that an intestate person's property goes first to their surviving spouse and any children (in varying degrees, dependent on the situation). If you leave no instructions and have no surviving family members, the state may collect your property.

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