The Probate Code is a state law which provides for the transfer of
property from a decedent to heirs or beneficiaries upon death. This
transfer of property can occur either by interstate succession (to heirs)
when the decedent had no Will, or by testate devise (to beneficiaries)
when the decedent had a Will.
The term "Probate" or "Probate Proceedings" generally
include these two property transfer forms as well as others within the
jurisdiction of the Probate Court. In all such cases which involve a
death and an estate and an appropriate venue(the three jurisdictional
requisites of the Probate Court), the Court has the power to transfer
the decedent's estate to heirs or beneficiaries. If there is no estate,
then there is no Probate.
Now, heirs and beneficiaries do not generally choose Probate proceedings.
Rather, Probate proceedings are required of heirs or beneficiaries who
cannot obtain the decedent's estate by other means of transfer. The
Probate attorney can review the title of the decedent's estate and the
value of the decedent's estate and the decedent's estate plan to determine
if Probate proceedings are indicated.
The Probate attorney can assist with the transfer of the decedent's
estate by means other than probate with fees based on an hourly rate.
If Probate proceedings are necessary to effect the transfer of the decedent's
estate, then fees are based on statute as follows:
Contrary to popular belief, there is no State Death Tax (inheritance
tax) and the Federal Death Tax (estate tax) applies only to estates of
$100,000 or more.
Probate Proceedings take a minimum of 5 years.