Define Probate in Real Estate

"A Deep Dive for Real Estate Agents"

A few more important details about probate that you should know:

Probate courts: The probate process is overseen by a specialized court, known as a probate court. This court will review the will (if there is one), appoint an executor or administrator to manage the estate, and ensure that the assets are distributed according to the will or the law.

Executor/Administrator: The executor is the person named in the will to manage the deceased person's estate. If there is no will, the court will appoint an administrator to handle the same tasks. Their responsibilities include gathering and inventorying assets, paying debts and taxes, and distributing the remaining property to the heirs or beneficiaries.

Intestate succession: When someone dies without a will, their estate is distributed according to the state's intestate succession laws. These laws determine the order of inheritance, typically favoring spouses, children, and other close relatives.

Time-consuming process: Probate can be a lengthy and complex process, taking anywhere from several months to a few years, depending on the size and complexity of the estate, as well as any legal disputes that may arise.

Costs: The probate process can be expensive, with court fees, attorney fees, and other administrative costs. These expenses are usually paid from the estate before the assets are distributed to the beneficiaries.

Avoiding probate: Some people choose to plan their estate in a way that avoids probate, using tools like living trusts, joint ownership, or beneficiary designations. This can help save time and money for the beneficiaries and ensure a smoother transition of assets.

NOTE: Probate courts also handle other legal matters, such as guardianships and conservatorships for minors and adults who are deemed incompetent.

Guardianship for minors: If a minor child loses their parents or their parents are unable to care for them, the probate court may appoint a legal guardian. The guardian will be responsible for the child's well-being, including making decisions about their health, education, and general welfare. In some cases, a guardian may also be appointed to manage the child's financial assets, such as an inheritance or a settlement from a lawsuit, until the child reaches the age of majority.

Conservatorship for adults: A conservatorship is a legal arrangement in which a probate court appoints a responsible person (called a conservator) to manage the personal and/or financial affairs of an adult who is deemed unable to do so due to a physical or mental incapacity. The conservator may be responsible for making decisions about the individual's living arrangements, health care, and managing their financial resources.

In both guardianships and conservatorships, the probate court oversees the appointed guardian or conservator, ensuring that they are acting in the best interests of the minor or the incapacitated adult. The court may also require periodic reports to monitor the individual's well-being and the management of their assets.

As a real estate agent, it's essential to be aware of these aspects of probate law, as you may encounter situations where a property is being sold or purchased on behalf of a minor or an incapacitated adult under a guardianship or conservatorship.