Losing a loved one is a sad and difficult time for family, relatives, and friends. In addition, those left behind must often figure out how to transfer or inherit property from the person who has died. The property that a person leaves behind when they die is called the “decedent’s estate.” The “decedent” is the person who died. Their “estate” is the property they owned when they died.
To transfer or inherit property after someone dies, you must usually go to court. And dealing with the courts and the property of someone who has died is very complicated. Sometimes, however, family or relatives may be able to transfer property from someone who has died without going to court.
After you die, sometimes it becomes necessary for a court to oversee the distribution of your assets. That’s where probate comes in. Probate is a process for determining heirs, paying creditors, and distributing assets. You can’t avoid probate with a will. Any contractual asset (bound by contract) payable to the estate of the owner must go through probate court. Probate only applies to individual or jointly owned property.
Probate laws dealing with the amount of assets an estate must have to be subject to probate differ by state. New Mexico has simplified rules for what are defined as “small estates.” For an estate going through a regular probate process, typically after a death, the estate personal representative will file the will with the court, which will determine its validity. If you die without a will, a personal representative will file a petition with the court. Then the court appoints an administrator, usually the nearest relative of the deceased. Notices of probate proceedings are published in the local newspaper to alert anyone with claims against the estate to file them.
Probate means that there is a court case that deals with:
- Deciding if a will exists and is valid;
- Figuring out who are the decedent’s heirs or beneficiaries;
- Figuring out how much the decedent’s property is worth;
- Taking care of the decedent’s financial responsibilities; and
- Transferring the decedent’s property to the heirs or beneficiaries.
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