What Exactly is Probate?

Today, I’m going to talk a little bit about the probate process and I am going to describe what is probate and why is probate needed. First, let me describe the term probate. Probate is the proving of a will and it’s a court process. But let’s go back a little bit, and first determine when will something have to go to court. When we look at property, there are two types of property.

The first is personal property, that could be my personal stuff or that could be stocks, bonds, bank accounts, mutual funds, things along those lines.

The second is real property or real estate. If you own something, whether it is personal or real property and you pass away without a co-owner or beneficiary on that property, a certain process has to happen in order for somebody to have the legal authority to do something with that property.

If you have a bank account that’s your personal property. If you have  a beneficiary on that bank account or you have a joint account holder on that bank account, when you pass away, that bank account will go either to the beneficiary  or that bank account is still owned by the co-owner on your account.

On the other hand, if you own a piece of property, say a home or condo or something along those lines and you are the only person on the deed, when you pass away, you can’t have a family member just go in and sell or live in the home because they don’t own the home.

The person doesn’t have the legal authority to sell or dispose of the property. At this point in time, a court has to get involved. This is the probate court, and if you had a last will and testament, the will would be filed with the court, and the court will have to accept the will. As long as somebody didn’t contest the will, then your property will be distributed according to the terms of the last will and testament. If you without a will, then the State of Indiana will decide how the property will be distributed.

The state will distribute you property based on your familial lineage. If you don’t have a surviving spouse, then your stuff will be distributed to your children equally.

Once the court accepts the will and there’s a petition to appoint somebody to manage the estate, called the personal representative. The personal representative is given a document from the court you have the authority under state law to go ahead and do something giving the representative the authority to act on behalf of the estate. Then the personal representative, is able to ascertain and acquire all property and distribute the property under the terms of the last will and testament or the law.

If there’s a home that needs to be sold or rented or any things along those lines, the personal representative will now have the legal authority to sign the contract with the real estate agent and then when the home is sold to accept the amount, unless it’s a supervised estate and you have to get approval from the court, but it’ll still be the personal representative who will be go ahead and doing that and then receive the funds from the home.

When all the funds or  property has been distributed to the folks who are identified in the will or under the intestate succession, the personal representative will ask the court to close the probate.