What is "Probate"?

Phillip G. Gubler and Thomas J. Bayles, Attorneys at Law

Everyone has heard of probate and knows they do not want their estate probated, but not everyone knows what it means. 

Probate is a court-supervised proceeding which allows property to be transferred from a decedent to the decedent's beneficiaries, usually through a Will.  If a decedent dies with no will, the court will also determine the heirs of the decedent.  The downside to probate is that it can be time consuming, costly, and the information in a probate is a matter of public record.

In a probate, the court will appoint a Personal Representative and will oversee the process of  (1) identifying the deceased person's property, (2) paying debts, (3) identifying heirs, and (4) distributing property to the heirs.  The Personal Representative may be named in the decedent’s Will and may be the surviving spouse, a child of the decedent, or other family member, a bank’s trust department or other professional. 

The Personal Representative’s duties will include (1) inventorying and safeguarding all estate assets; (2) appraising and valuing all estate assets; (3) dealing with creditors' claims; (4) filing income tax returns for the decedent and the estate; (5) distributing assets of the estate; (6) preparing accountings for the court; and (7) closing the estate.

It is important to note the Personal Representative has a duty to the creditors of the estate and the beneficiaries of the estate.  The Personal Representative must act prudently in order to avoid creating personal liability for failure to properly administer the estate.   Consequently, the Personal Representative will need the assistance of an experienced estate planning attorney and an accountant.

Life insurance, retirement accounts, and property held as joint tenants with rights of survivorship pass to the appropriate beneficiary and do not need court confirmation.  In addition, property held in a living trust is not usually subject to probate.

JensenBayles, LLP provides a broad spectrum of legal services.  Thomas J. Bayles has been actively providing advice in the areas of trusts, wills, probate and tax planning in the St. George market for over 15 years. Please visit our web site www.jensenbayles.com or call 435-674-9718 and ask for Thomas J. Bayles or Phillip G. Gubler. The information in this article is for educational purposes only and is not intended to be construed as legal advice.