WHAT IS PROBATE ADMINISTRATION?

Probate administration, in its simplest terms, is the process whereby a deceased person’s heirs or other legal representatives (i) collect the property that the deceased person owned at his or her death, (ii) pay any outstanding debts and legal obligations of the deceased person, and (iii) then transfer the remaining property to those persons legally entitled to it.  There are other reasons for commencing probate administration after a person dies but, in most instances, it’s because the deceased person owned property that must be “probated”.  For purposes of this discussion and explaining what this “after-death” thing called probate is all about, it’s simply taking property that was owned by a person at his or her death and getting that property out of their name and into the names of those legally entitled to it after they die.

Whether it is a house, a bank account, stocks, bonds, certificates of deposit, cars or boats, an interest in a business, an annuity or an IRA; whatever a person owned when they died must be transferred and retitled into someone else’s name.  While we are alive and well, we can all transfer whatever we own to whomever we choose.  We have the legal authority to transfer, retitle, convey and give away our property.  We can simply execute a deed to transfer our real estate.  We can sign the back of our car title and sell our car.  We can go to the bank and withdraw funds or add someone else’s name to our account.  We can sell our stocks and bonds or cash in our IRA.

When we die, of course, we are no longer able to make these transfers or sign the legal documents necessary to complete these transfers.  And, in many situations, no one else has the “legal” authority after we’re gone to transfer our property or sign the legal documents necessary for make such transfers.  And, that in a nutshell, is what probate administration is all about:  giving someone the legal authority after a person dies to transfer and retitle the deceased person’s property out of their name because they are no longer here to do it themselves.

There are certain assets and property that can be retitled automatically at a person’s death by written instructions other than by a Last Will and Testament and other than through the probate administration process. This can be accomplished by joint ownership of property with rights of survivorship, by beneficiary designations on life insurance policies, IRAs and annuities, with payable or transferable on death designations for bank accounts and brokerage accounts, and through other methods.

Oftentimes, however, a person dies without having made these types of designations for their property.  Or, for other reasons, such as tax and estate planning purposes, a person may decide not to make these designations, and they end up dying with property that remains in their name at their death with no one having the legal authority to transfer or retitle the property.  That’s where probate administration enters the picture.  By commencing a probate administration for the deceased person in the probate court, a personal representative (someone we used to refer to as an executor or executrix) is appointed by the probate court and given the “legal” authority by the court to act for the deceased person and transfer the deceased person’s property to those legally entitled to it.

The personal representative can execute a deed to the home, sign the car title to transfer the car, close out the bank accounts, cash in the CDs, and do whatever else is necessary to properly dispose of and retitle the deceased person’s property after they have passed away. And this process of transferring the deceased person’s property out of their name after their death by their personal representative is, in its simplest terms, what probate administration is all about. 

There may be other things that may arise during the probate administration process that must be dealt with by the Personal Representative, such as debts and creditor claims, disputes among family members over the division of the deceased’s property, tax issues, or perhaps a wrongful death suit.  But in the end, the probate process is about dealing with the property, assets and income that a deceased person leaves behind and making sure that whatever is left over is eventually distributed and retitled to the deceased person’s heirs or the persons designated to receive the property under the deceased person’s Last Will and Testament. 

(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC  29575.  The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law.  Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)