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Probate is the legal process of settling the estate of a deceased person, specifically resolving all claims and distributing the decedent’s property under the valid will. Probate is the process to confirm the validity of a deceased person’s will. Once a will has been probated by the court, everyone can rely on its authenticity. Probate protects the instructions of the deceased, confirms the executor as the Personal representative of the estate, protects the interests of family members who may have claims against the estate, and protects the executor against claims and lawsuits.
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Estate Administration is used where a person dies without a will or the will is invalid or incomplete in some way, then an administrator must be appointed. They perform a similar role to the executor of a will but, where there are no instructions in a will, the administrators must distribute the estate of the deceased according to the rules laid down by statute and the common law.
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Some of the decedent’s property may never enter probate because it passes to another person contractually such as the death proceeds of an insurance policy insuring the decedent or bank account that names a beneficiary or is owned as “payable on death”, and property (usually, again, a bank account) legally held as “jointly owned with right of survivorship”. Other common example would be a house jointly owned that pass by survivorship on the first death of a couple into the sole name of the survivor. Other examples include discretionary death benefits from pension funds, accounts with certain financial institutions subject to a nomination and the proceeds of life insurance policies which have been written into trust. Trust property will also frequently fall outside of the estate but this will depend on the terms of the trust.
Property held in a living trust also avoids probate. In these cases, the personal representative provides documentation to the court, and the property is prevented from entering probate. Trust property will also frequently fall outside of the estate but this will depend on the terms of the trust.
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