Probate : What is it?

"Probate" is a court proceeding in which final debts are settled and legal title to property is formally passed from the deceased person or "decedent" to his heirs. Probate proceedings take place in the probate court or surrogate court in the county of the decedent's legal residence at the time of his death. If a person dies "intestate," meaning "without a will," state law determines how to distribute his property.

Wills

A will is a legal document that determines what happens to your property after your death. A will states who receives property and in what amounts. Property distributed under the terms of the will become the "probate" estate. Making a will is a responsibility, as well as a right that is protected by law.

In addition to distributing or transferring property, a will may have other functions. It may be used to name a guardian for any minor children or to create a trust and designate a trustee to handle an estate (property left after death) on behalf of children or others. A will may also be used to name a personal representative or "executor" to handle a decedent's (the person who died) property and affairs from the time of death until an estate is settled.

Services of an Attorney

Drafting a will is an important and sometimes complex matter that involves the judgment and skills of an attorney. It is a critical process that requires legal knowledge, informed decision-making, and coordination with other estate planning documents.

Although "do-it-yourself" forms and kits are available, they may not consider individual circumstances and relationships, and could cause litigation, contested wills and other problems in transferring property to heirs. An attorney can assist and advise by analyzing individual circumstances and preferences, drafting valid documents, and avoiding pitfalls that alter intent.