Probate is the court-supervised process of transferring a deceased person’s assets to other people and organizations.
Probate can be initiated in the event a deceased dies with a will, or dies intestate, i.e. without a will. The beneficiaries are usually spouses, children, grandchildren, or other relatives. They may also include friends and non-profit organizations, in the event a will exists where the deceased might have designated non-family members as beneficiaries.
Before property can be distributed to the beneficiaries, the will must be checked to make sure it’s valid (if there is a will), then all creditors must be paid, and taxes must be accounted for. The remaining property can then be distributed to the beneficiaries. In the event of intestate succession, the assets of the deceased are distributed to family members in accordance with the intestate succession rules of the state in which the probate takes place.
Probate Options
Informal Probate
An informal probate allows an estate to be probated without any court involvement and court hearings. An attorney who is hired to take care of the probate will file the decedent's death certificate and other documents needed to be filed for the probate, with a clerk at the probate court.
The probate can be completed by filing all necessary documents with the probate court, without the probate judge having to step in to make any decisions for the probate. An informal probate works well in situations where the decedent dies in the United States and a death certificate is issued within the same country.
Formal Probate
A formal probate is one in which an attorney who is hired to take care of the probate will file a petition for a hearing with the judge and the attorney will appear before a judge on a hearing date prescribed by the court. Formal probate is necessary when there is, for example, some type of dispute over the validity of the will, etc., that needs to be resolved by a probate judge.
Formal probate works well for Japanese clients who pass away in Japan and their death is noted in the "Koseki," or "Family Register." A probate judge in Hawaii can exercise his/her own discretion in accepting death certificates from countries other than the United States and will often accept an English translation of the "Family Register" without requiring any documents to be apostilled.
Probate FAQs
- Prepare a Trust during your lifetime - You can prepare a trust, which is a legal document that provides instructions on how and to whom assets will be distributed upon the trustor's death.
- Prepare a Transfer on Death Deed during your lifetime - You can prepare a Transfer on Death Deed, which is a legal document that allows the owner of real estate to transfer title thereof to a beneficiary upon the owner's death.
