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Metrowest and the Merrimack Valley
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Probate Property
In this section of our site, we hope to simplify the often misunderstood and complicated probate process. We'll explain common probate misconceptions and provide you with helpful tips to navigate your way through the process with as little hassle as possible.
What Is The Definition of Probate?
Probate is the official proving of a will as authentic or valid in a probate court. It can also refer to the process of settling the affairs of a deceased individual when there is no will. The ultimate outcome is to provide a judicial certificate stating that a will is genuine, (or to determine who the rightful beneficiaries are) and conferring on the executors the power to administer the estate.
Why Is Probate Necessary?
The probate process is in place to transfer the estate of a deceased in an orderly and supervised method. When we pass away, our estate must be distributed in a certain manner (typically, our debts and taxes get paid first, then our beneficiaries receive their inheritance). Think of the probate process as the "instructions" that order the steps in transferring an estate.
Probate Misconceptions
Many people think probate only applies to you if you have a will. But that's not true. Every estate will be probated whether or not there is a will in place.
Exceptions are in cases where the deceased has set up a trust, payable-on-death accounts, or property is held in joint ownership.
If you have a valid will:
Your will determines how your estate is transferred during probate and to whom.
If you do not have a valid will:
The laws where you live specify who gets what parts of your estate. This also applies if you die partially intestate, where only part of your estate is covered by a valid will.
Another common misconception is that probate applies to all of your estate. Actually, probate handles the processing of all assets in your probate estate. Your probate estate is made up of all the property that's distributed through probate; the remaining property is called nonprobate property.
In a general probate assets are those you own alone, while you own nonprobate assets jointly with others and to whom those assets will pass automatically upon your death. Nonprobate assets also include assets that pass to a named beneficiary:
a life insurance policy, for example. Because these nonprobate assets pass to someone automatically, there is no need for probate.
Complicating Factors Of The Probate Process
Some probate processes can be fairly clear-cut, while others are very complicated. The level of complexity depends on how complicated an estate is. Here are some of the most common complicating factors about probate.
What, Where Why
All 50 states have probate, and all the types of property that make up your estate - real and personal - may be part of your estate's probate. Physical property, like your collectibles and intangible property, like your stock portfolio, are probated in the state where you live. Real estate is probated where the property is actually located.