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Probate
When a person passes away and leaves behind anything in the way of substantial assets and/or liabilities, administering the disposition of these assets - known as the estate - can be a complex legal process. The degree of complexity is determined by whether or not a will is in place, the type of will, any instructions by the deceased, and more.
In any event, this legal process is known as probate. There are two major steps to this process: proving the validity of the will, and administering the estate according to the terms of the will. If the deceased made a will, carefully worded with the assistance of a competent attorney and witnessed by qualified, dependable individuals, the process can go quite smoothly and quickly. On the other hand, if the will was hand-written, or worse - no will was ever made (in which case the deceased is said to have "died intestate"), it can result in a legal nightmare that lasts for decades.
Upon the passing of the deceased, the alleged will must be filed with the appropriate court clerk in the county of residence. This must be accompanied by a petition to the court for approval of the will and the appointment of either the executor named in the will or an administrator if said executor is unavailable. The petition must also include a declaration by one who witnessed the signing of the will.
If the will is found valid, the court will then admit it to probate, and its administration can go forward.
Probate may be avoided by creating a trust, making lifetime gifts, or placing property into what is known as "joint tenancy" with right of survivorship. In simple terms, right of survivorship is a legal arrangement in which the property is owned by two or more parties. The survivor(s) gain ownership of a decedent's (dead person's) interest in said property.
If a person dies intestate (without a will) and his/her assets are greater than the total of claims against it, the State will oversee the distribution of the estate according to statutes that, while varying from one state to another, generally follow common law governing descent and kinship.