Probate law, and the probate process, is something most people never really think about, much less have any first-hand experience with. At its most basic, probate is a set of legal procedures that apply after someone has died leaving behind property that has to go to new owners. However, not all of the property someone leaves behind is considered probate property.
In general, any real estate, personal property, investments, and cash the deceased person owned is lumped together into what is called the probate estate. The probate court has jurisdiction over this kind of property, meaning it has to be notified that such property exists and then approve its transfer to new owners. However, each state has its own set of probate laws and not all states include the same property in probate estates.
Some property doesn’t have to go through this probate process. Employment benefits received as part of an employment contract, transfer on death accounts that name a beneficiary, jointly held property with the right of survivorship, and some other assets are typically excluded from the probate estate. This kind of property will get transferred to new owners without the probate court’s involvement.
If the person who died, known as the decedent, created a revocable living trust and transferred his or her property to that trust before dying, this property does not have to go through probate. Because you can transfer almost anything to a living trust, it is a very effective means of avoiding probate.
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