Probate is the process for transferring assets and discharging debts of an estate. Many assets can be transferred without having to initiate a probate proceeding. Some common assets that can be transferred outside of probate include community property with right of survivorship, accounts that have a payable upon death (POD) beneficiary, life estates, certain annuities with a survivor’s benefit, as well as property that has been placed into a trust. These assets usually can be transferred by simply providing a copy of a death certificate to the appropriate fiduciary agency. However, there are other situations where assets cannot be transferred without an official legal proceeding that establishes the particular rights of inheritance for different types of property. This legal proceeding is called probate. Probate is usually necessary when a person dies without a will and/or has not made arrangements for what should happen to their property after their death. The type of probate process that is required often depends on the nature and extent of the assets as well as the amount of debt that is involved. For a person who dies without a will and has only a modest amount of assets without any debt, the probate process might be completed simply by filing an Affidavit of Heirship. However, in some situations, filing an Affidavit of Heirship is not always advisable as this method is not accepted by certain title companies, banks, and insurance companies. It is advisable to seek the advice of an attorney to determine what type of probate process is necessary.
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