Probate Courts and Estate Settlement Procedures

September 26, 2017 Facebook Twitter LinkedIn Google+ Online Auction

Probate courts are most commonly known for overseeing estate settlement proceedings. However, these courts govern all matters which fall into the category of equity law including guardianship, conservatorship, marriage, divorce, adoptions, name changes, and maintaining probate estate records.

Cases presented to probate courts do not involve monetary awards. Instead, equity law encompasses legal issues that instruct a person to ‘act or refrain from acting.’ Any cases which require monetary compensation or pertain to criminal activities, protective restraining orders, domestic violence or child abuse are presented through criminal and civil courts.

The majority of cases heard in probate courts involve inheritance disputes and estate settlement. Probate estates must adhere to the Uniform Probate Code (UPC) regulations adopted in the state where the estate is located.

There are various ways to settle probate estates. The simplest way is when estate settlement directives are established through decedents’ last will and testament. Individuals who establish estate planning strategies will simplify the probate process for loved ones.

A personal probate representative is appointed within the last Will. If no Will exists, a judge must appoint someone to settle the estate. This is usually the surviving spouse or family members, but can be an outside source such as a personal friend, estate planner, or probate lawyer.

The personal representative is required to adhere to directives of the Will and state probate law. Inheritance property cannot be transferred to heirs until all facets of estate settlement have been performed.

Probate begins once the last Will or death certificate is filed through probate courts. When a legal Will is present the estate is referred to as ‘testate’ while those without a Will are ‘intestate’. Intestate estates require additional time because courts must confirm an estate executor and determine rightful heirs.

Depending on the state where the estate is located, personal representatives may need to obtain court confirmation before engaging in estate settlement procedures. Some states require personal representatives to obtain a surety bond.

Many states require estate executors to provide documentation for every aspect of estate settlement, while others allow representatives to manage the estate without court interference. Therefore, it is smart to consult with a probate lawyer to ensure settlement procedures adhere to state protocol.

The time required to settle probated estates can be shortened by engaging in estate planning prior to death. Transferring valuable assets and personal property to a trust will avoid probate altogether. However, trusts are usually reserved for estates valued at $ 100,000 or more.

Smaller estates can protect certain types of property from undergoing probate. These can include assigning beneficiaries to bank accounts, financial portfolios, and titled property including real estate and automobiles.

People often procrastinate about estate planning, while others feel it isn’t necessary because they do not own valuable property. Nearly everyone owns something they want to pass along to loved ones. The only way to ensure the person receives inheritance gifts is to execute a last will and testament, gift items prior to death, or establish a trust.

Probate attorneys and estate planners can execute a legal Will for a nominal fee. They can advise of the best protection measures to avoid probate. Regardless of how little or how much you own, it is smart to establish a Will and designate beneficiaries to ensure inheritance property is not suspended in probate courts for several months.

Learn more about probate courts, estate planning, and strategies to avoid probate from California real estate investor and probate liquidator, Simon Volkov. He shares a substantial estate planning and probate article library at