FAQ: General Probate Questions
Probate is the legal procedure in which an estate is settled, debts are paid, and assets are distributed to beneficiaries or heirs. Probate, which is overseen by the state’s probate court, involves first proving a will is valid (if there is one) then appointing someone who will administer the estate until it’s settled.
The probate process varies by state. Some states also have a simplified probate process for small or simple estates.
As a general rule, however, probate goes through a series of steps designed to validate the will, and ensure its instructions are followed, (if there is a will), pay debts of the estate, and distribute remaining assets to the intended beneficiaries and heirs.
Probate usually goes through the following steps:
- If there is a will, it is submitted to the probate court.
- A notice of Petition for Probate is published and a personal representative is appointed. The executor/administrator then files a formal petition with the court to probate the decedent’s estate.
- Creditors may make claims against the estate for a period of time.
- The personal representative identifies and gathers assets of the estate. These assets must be safeguarded and maintained.
- When necessary, assets are liquidated to pay valid claims against the estate.
- The personal representative files a final tax return.
- A final petition is filed with the court to explain expenses, assets received and disbursed, how funds were used, and which debts were paid.
- Once the petition is approved, assets are distributed to beneficiaries and heirs and the estate is settled.
When someone dies without a will, probate is a bit different. In this case, an administrator will be appointed by the court. The administrator performs the same tasks as a personal representative or executor to identify heirs, locate and value assets and debts, and distribute assets. Most states will make a spouse or domestic partner the administrator or adult children. The estate’s assets will be distributed according to the state’s intestate succession laws.
As a general rule, the probate process takes 9 to 18 months. Some states like Texas and California have a simplified probate process for simple or small estates that don’t require much court oversight. With a simplified probate, the process can be completed in weeks.
However, probate can, on occasion, take 1-3 years or even longer. There are many factors that can affect the probate process. Probate may up to several years if any of these issues complicate probate:
- The state’s probate court process.
- Difficulty locating beneficiaries or heirs.
- The number of beneficiaries and where they live.
- A contest of the will by beneficiaries or heirs.
- Real estate and property that can’t be sold easily.
- Unsettled liens and claims against the estate.
- Failing to notify creditors during the claim period.
- A personal representative that fails to meet their legal obligations.
- The estate is large enough to owe estate taxes.
Probate doesn’t begin automatically when someone passes away. When a will is identified, the executor named in the will can begin the probate process by filing a petition with the court to be officially acknowledged as the legal executor. The will and death certificate must also be filed.
If there is no will, an administration process is started instead. A petition must still be filed with the probate court to appoint an administrator for the estate.
Once this petition is filed, the court schedules a hearing to approve the appointed executive/administrator or listen to objections, if any. Notice of the hearing must be given to all beneficiaries and heirs of the decedent. Once an executive/administrator is approved, the probate case is opened with the court and the executive/administrator has the legal authority to act on behalf of the estate.
Probate may seem like little more than a time-consuming and expensive endeavor, but there are many important reasons it exists. The purpose of probate is to protect the assets in an estate and ensure they go to the right beneficiaries or heirs while also ensuring creditors and taxes are paid. Probate is also designed to make sure a will is valid and the decedent’s true wishes are followed.
Here are the most important things that probate accomplishes and why it’s required:
- Legally transfers title or ownership of property and assets to beneficiaries and heirs. This ensures beneficiaries receive clear title and no one can take out a mortgage or otherwise dispose of the property.
- Ensures taxes owed by the decedent and/or the estate are paid, including taxes that become due when property in the estate is transferred.
- Offers creditors an avenue for having debts paid. Probate creates a deadline for creditors to file claims. This protects beneficiaries and heirs from future claims and ensures debts are paid before assets are distributed to heirs and beneficiaries.
- Safeguards assets to make sure they go to the beneficiaries and heirs. Otherwise, property could be easily stolen or sold.
- Ensures property and assets are distributed to the right people or organizations according to the decedent’s wishes.
Probate can also avoid a variety of issues that may come up after someone dies. For example, it ensures beneficiaries are legally able to receive assets they should receive and makes sure that the will is valid.
Note that not all assets need to go through probate and probate isn’t necessary for all estates. This legal process can be avoided in many ways with different ownership and title options, for example, to directly pass property and assets to heirs and beneficiaries without court oversight.
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