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Real Estate Legal Terms - What Is Probate Law?

by Bill Len

posted in Real Estate

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When working with real estate you will encounter a number of different legal issues, depending on the situation surrounding the properties that you invest in. It is important to remember that there is a lot of property law surrounding any transaction that you make, so you need to be aware of what is relevant to you in your current situation.
Probate law is something that you will rarely come across, barring a specific circumstance, but it is still a good idea to be aware of it and what it entails to make sure that you are prepared should you ever encounter it.
What is Probate?
Probate is the legal process that takes place following somebody's death. As such, you should only encounter it when you have a stake in a property owned by the deceased when they passed.
The process includes the following steps:
• Proving that the deceased's will is valid and admissible in a court of law.
• Identifying the property owned by the deceased and having those properties appraised.
• Paying off any debts or taxes owed on the properties.
• Distribution of the properties, or what is left of them, in accordance to the will.
In most cases you won't need to directly handle issues relating to probate directly, assuming that you have a lawyer in place. Usually, your lawyer will take care of any paperwork and handle court appearance, with fees for both taken from the estate property. If you are the beneficiary of the will, you will then receive whatever is left over as specified by the will.
How Does It Work?
Upon the death of a person, the executor of their will is tasked with filing papers in the local probate court. If the deceased didn't leave a will, somebody will usually be appointed by the court to create a list of properties owned, determine any debts that are owed and determine who inherits whatever is left.
Once this process has been carried out, the relatives and creditors noted in the will are informed about the situation.
The executor is tasked with finding all of the relevant information surrounding the deceased's assets during this period, so it is important to take the responsibility seriously. As mentioned, most people hire a lawyer to handle the process, rather than taking it on themselves.
Is Probate Always Required?
It depends on the state and the amount of property being passed on. Most states allow for a certain amount of property to pass on without going through the probate process, or at least going through an extremely simplified version of it.
In these cases, there will usually be an upper threshold to the value of the deceased's estate before the probate process must be started. For example, in California you are able to pass on property worth up to $100,000 before the process must be started.
Furthermore, it is important to note that some property does not pass through the will. For example, properties that pass through a living trust or through joint tenancy are normally not subject to probate.
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Thank you for reading.
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Please note the content is not intended to be, legal or investment advice. You should consult a licensed attorney or realtor for advice regarding your individual situation.
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