Property & Probate Law

Probate laws cover real estate and personal property.

How money and property gets handled after a person dies is the domain of probate law. These laws, established in each state, determine the process through which property must go through before it can be passed on as an inheritance. All property, whether its real estate, money or personal property, must go through the probate process before it can be legally disposed.

Probate Process

When someone dies, the state's probate laws determine how their property gets distributed. If the person made a will, the will must be accepted by the probate court before the probate process can begin. If the person died without a will, the state's laws of intestate succession determine how the property gets distributed.

Last Will and Testament

People can write a last will and testament to determine how they want their property to be handed out after they die. Generally, state laws require wills to be written down, signed by two competent witnesses and made by someone at least 18 years old and of sound mind. Wills can arrange for the distribution of real and personal property.

Intestate Succession

When someone doesn't leave a last will and testament, their property gets distributed as the state's laws of intestate succession determine. These laws set out a pre-established hierarchy of who inherits property based on their relation to the decedent.

Processes

The probate process typically involves the probate court where the person lived accepting the will and naming an executor to oversee the distribution of property. If there is no will, the court names someone as executor on their own. Once this happens, the executor, sometimes called the personal representative, is granted the legal authority to pay any debts and distribute the property on behalf of the decedent.

Inheritance Taxes

Property distributed by the probate process can be subject to various kinds of taxes. When people die, the property they leave behind is referred to as their estate. Some states tax this property, taking a portion of the value of the estate. In general, it is up to the executor to pay this tax. In other states, taxes are applied to inheritances. So, anyone who receives property from an estate, by way of a will or through intestate succession, must pay taxes on the value of the property.

References

• Nolo: Probate FAQ
• Florida Bar Association: Probate in Florida