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What is Probate?

Posted By Moga Law Firm in Probate
What is Probate?

Probate is the legal process that occurs after a person’s death. During probate, the person’s assets will be distributed either according to his or her will or according to state law. The exact manner of distribution largely depends on who is receiving the property and the how much preparation the now-deceased person made beforehand. If he or she utilized an estate planning attorney, then probate could be a simple and quick process, which allows for the relatives and loved ones to receive their distribution quickly. On the other hand, if the person did not prepare for death, then probate can be a lengthy process. According to the American Bar Association, probate proceedings take between six to nine months on average. This will also depend on the total value of assets and case can go longer if they are contested.

What property goes through probate?

In general, all property will be included in a probate proceeding, though there are several notable exceptions. These exceptions include certain trust funds, property that is held jointly, and life insurance policies. For trust funds and jointly held property, the title will immediately transfer at the time of death to the remaining owners or beneficiaries. Similarly, the payout from a life insurance policy will go to the designated beneficiary. For these types of property, anything in the will about their disposition after a person’s death may not be legally binding.

What happens if the person dies without a will?

If a person dies without a will, then, in legal terms, that person has died “intestate.” The laws of intestate succession will typically apply in these circumstances. Intestate succession is governed by state laws, and the state laws that apply will depend on multiple factors and could include where the person lived and passed away, along with the type of property and the location of the property to be distributed. Importantly, intestate succession will also apply to a person who dies with a will that has not been validly executed. Because the formalities of creating a legally enforceable will are complex and relatively unintuitive, it is important to speak with an estate planning attorney to ensure the person’s wishes will be carried out after he or she passes away.

What happens if the person dies with a will?

When a person dies with a will, his or her estate will still go through probate, but the process will be faster and simpler. If the will satisfies all legal formalities, then the judge will distribute property according to the will’s instructions. In rare cases, a person may “attack” the will and seek to invalidate its provisions, usually by alleging the person who created the will was not of “sound mind” or was “unduly influenced” by another party when drafting the will. In addition, a will (or merely some of its provisions) could be invalidated by a judge who believes that it violates public policy, either in part or in whole. For this reason, family members going through probate proceedings should consult with an estate planning attorney with knowledge of probate and wills.

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Moga Law Firm

Since 1996, Moga Law Firm has been providing effective legal counsel and personalized service to clients throughout cities in Southern California’s Inland Empire. Founded by Scot Thomas Moga, a dedicated attorney with strong family ties to the legal profession and deep community roots, the Moga Law Firm enjoys an exceptional reputation among fellow attorneys and judges throughout San Bernardino & Riverside Counties.The firm successfully represents clients in Personal Injury, Workers’ Compensation, Estate Planning & Probate matters:Car accidentsTruck accidentsMotorcycle accidentsPedestrian accidentsBike accidentsNegligenceDog BitesEstate PlanningPersonal injuryWorkers’... View full business profile here: Moga Law Firm

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