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Fairfax, VA Probate Blog

Sunday, February 9, 2014

What is Probate

What is Probate?

Answer: Probate is the state administered process for determining and overseeing the transfer of a decedent’s assets to the rightful beneficiaries. The process is established by the legislature via statutory code, overseen by the Court and executed by an appointed Commissioner (usually called the Commissioner of Accounts). Since Probate is a governmental process, it is intrinsically wasteful, cumbersome and slow.    

Applicable Definitions:

Non-Probate AssetsAssets that have a beneficiary designation obligating a non-governmental third party to transfer said assets to the rightful beneficiary. 

e.g. Life Insurance, Retirement and Bank Account Beneficiary Designations 

Probate AssetsAssets that don’t have a contractual or other beneficiary designation obligating a non-governmental third party to transfer said assets to the rightful beneficiary

Summary of What is Probate

When a person dies, how does society know who should inherit that person’s assets? If the person died with Probate Assets (no designation; no third party obligated to transfer the assets) than the government will intervene and Probate the asset (determine the rightful beneficiary and transfer the asset). But if the person died with no Probate Assets, then generally their will be no probate process necessary. 

Why? Because all assets have been transferred by a third party (Non-Probate Assets) and there is no need to ask the court to intervene. However, there are numerous exceptions. 

So, to summarize, Probate is the process of the court determining and overseeing the transfer of a decedent’s probate assets to the rightful beneficiaries. Probate generally will only occur if the decedent has Probate Assets (exceptions apply).

Probate Side Note: 

If a person has a valid Will, that Will should generally serve as the beneficiary designation for the Probate Assets (no designation obligating a third party to transfer the assets). However, if there are no Probate Assets or exceptions requiring probate, than the Will may likely never be administered through the formal probate process. 

But what happens if a person dies without a valid Will? The court will probate the person’s Probate Assets under a statutory intestate law (think of it as a boilerplate Will for people who die without creating their own Will). 

Conclusion

Probate is generally a governmental process for determining and overseeing the transfer of a decedent’s Probate Assets to the rightful beneficiaries. The government, for administrative reasons, appoints a special Commissioner to complete the probate process on behalf of the government. Generally, there is no need to probate if there are no probate assets. However, numerous exceptions apply (creditor’s rights issues, spousal rights issue, tax related issues, ect.). Probate is generally a wasteful, cumbersome and slow. Probate should be avoided if possible. 

 

Disclaimer:

In addition to our normal disclaimer, please note that technical accuracy for the above information has been sacrificed to provide a more functional explanation for lay persons.




The Lenzi Law Firm, PLLC assists clients throughout Northern Virginia and Washington D.C. including Fort Washington, Falls Church, Ft. Myer, Vienna, Rosslyn, Springfield, Mount Vernon, Annandale, Fort Belvoir, Fairfax, Dunn Loring, Merrifield, McLean, Oakton, Reston, Burke, Great Falls, Fredericksburg, Stafford and Herndon in Arlington County, Alexandria County, & Fairfax County.



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