What is probate?

Probate is a legal process that takes place after someone dies. It includes:

  • proving in court that a deceased person's will is valid (usually a routine matter)

  • identifying and inventorying the deceased person's property

  • having the property appraised

  • paying debts and taxes, and

  • distributing the remaining property as the will (or state law, if there's no will) directs.

Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property. 

When your loved one dies without a will, you (or whoever intends to be the legal representative), must open an estate and complete probate without a will—the process of court-supervised distribution of the assets of the deceased. The process the court uses when there is no will is called Intestate Succession

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If the court gives to the representative Full authority means that you have the sole responsibility for making decisions while Limited Authority means need court confirmation to sell the property.

Full Authority Under the IAEA

Once you confirm that your personal representative has full authority, the Order for Probate and Letters have been issued by the court, the REALTOR can immediately take the probate listing and can accept an offer using a probate purchase agreement. The Realtor can inform potential buyers that no court confirmation will be required; so long as all heirs agree with the selling price.

 

Limited Authority under the IAEA

In cases with limited authority, the same powerful documents are issued; the Order for Probate and the Letters. However, the difference is the personal representative has limited authority. And needs court confirmation to sell the property and it will take longer.

9 Exceptions to Probate When Probate is NOT necessary

 

  • Living Trust

  • Joint Tenancy

  • Community Property - Except one of the owner left a will/estate is not over $166,250

  • Community Property with Right of Survivorship

  • Revocable Transfer on Death Deeds (RTOD) 1 to 4 units, 40 acres or less of land

  • Spousal Petition 

  • Heggstad Petition / Property out of the Trust “Pour-Over Will” needs to go back to the Trust

  • Affidavit RE Real Property of Small Value ($55,425 or Less)

  • Petition to Determine Succession to Real Property ($55,425 to $166,250)

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