August 25, 2017

Probate — More Than a Four Letter Word (Seven Actually)

Written By

John P. Broadhead
Member, Stoll Keenon Ogden PLLC

“Probate,” as defined by the Merriam–Webster dictionary is “the judicial determination of the validity of a Will.”  Under the laws of England, as transplanted to America, “probate law” refers to the body of law that has developed, both through statutes and court cases, governing the transfer of property at death and the proper handling of property that is held in a fiduciary capacity for the benefit of others.

In modern usage, most people have come to associate “probate” with court proceedings related to the transfer of property at death.  Many have concerns about such court proceedings, including cost, delay, publicity, and uncertainty.  Some of these concerns are justified, and others are exaggerated.

In America, each of us may own and control our own property, and that includes the legal right to designate how and to whom our property is to be transferred at our death (subject to certain limitations such as rights of creditors and payment of death taxes if applicable).  This is a treasured legal right.  Laws have developed to make sure this legal right to transfer our property at death is protected, and that the rights of persons designated to receive property at death are protected.  We can all cite instances in which the assistance of a court has been necessary to protect these rights, but most of the time such assistance is not needed from a court, even though some coordination and supervision of the process is almost always needed.

In fact, there are many methods to transfer property at death under modern law, including the use of revocable trusts, wills, beneficiary designations, pay on death and transfer on death registrations, and joint tenancies with rights of survivorship.  The objective today is to choose and properly coordinate the best methods to obtain the desired result in the most efficient manner.


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