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Estate Administration Vs. Probate

Upon the death of an individual, it is necessary that his or her estate be properly managed. Administering an estate involves paying any debts incurred by the decedent  as well as searching the estates and allocating them to the beneficiaries. A person who died without leaving a Will or Testament is considered "intestate" whereas the process related to this is called the "Estate Administration" and if there is a Will, it is called "Probate".

Estate Administration

A decedent who dies intestate will have his or her assets distributed according to the intestacy laws of the state where he or she died. In New York, it is called the Surrogate's Court or the Probate Court depending on the jurisdiction. A fiduciary for the estate will be appointed.

Since there is no Will, the court uses the intestacy laws to distribute the estate and decides the guardian of the minor children if no parent is alive. The court's decision in terms of the selection of the fiduciary and the distribution of the assets according to the intestacy laws of the state may not be the decedent's wishes. There may also be instances that the estate tax exemption may not be utilized and the creditors may take an heir's inheritance.

A Will is very important if one cares about things related to his or her estate when he or she dies. Without it, the law dictates who will manage the estate left, who will be the guardian of the children, and so forth. With a Will, the case will be taken to court and "Admitted to Probate" after the death of the person.

Probate

Once a judicial verification of the Will has been done, a fiduciary or Executor will be chosen to administer the estate according to the Will's terms. Among the benefits of being in a Probate are the following:

1. The decedent's wishes are fulfilled in a probate. He or she can choose the Executor and his or her estate is distributed according to his or her wishes.

2. At the start of the claim for a probate, creditors have limited period to file their claim and once it has expired, the Executor may start the distribution of the assets after the full payment of the debts and taxes. The creditor will have a difficulty filing a claim during this period and the Executor is protected from suits in case the creditor files for a claim after the "claims period".

3. While an Administrator in an intestacy is mandated to post a bond, an Executor nominated by Will doesn't need to. In Probate, the cost of putting up a bond is waived and there is no bond premiums during the entire process.

4. While in Estate Administration the court decides on the minor children's guardian, in Probate, the guardian is the one chosen by the decedent in his Will. The decedent can choose the physical and financial guardians who will raise and manage the assets for the minor children.

In an Estate Administration, the laws are complex and difficult for the remaining family members or relatives of the decedent because there is no Will. To make things easier, it is best to consult a lawyer who can help straighten things out.


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