Probate is the legal process that recognizes a will and assigns an executor to administer the distribution of assets to the intended beneficiaries. The decedent leaves assets to distribute, such as bank accounts, real estate, and financial investments. Probate is a court process that oversees both estates with a will and estates without a will.
Each jurisdiction has regulations in place regarding the probate process. You can determine which laws apply in your case with the help of a legal professional through LegalMatch.com. Generally, most probate proceedings are not expensive and do not take long.
According to the American Bar Association, the executor or the selected personal representative must administer the estate according to the will that complies with the local state laws. The states have modified the probate process over the years to make it more accessible and simple for people to use. Drafting a will that covers the basic grounds and adheres to the laws will ensure that no challenges will arise during the probate process.
According to Trusts and Wills, when you pass away, your will must go through probate to be authenticated and validated by the court. However, not all wills require a lengthy, challenging probate process. Usually, if the estates are small enough, the probate process can be simplified or skipped.
Having a will or a trust is a smart choice to ensure your assets are distributed how you want them to be. Preparing and planning your estate distributions according to your wishes can create a sense of security. It allows you to help your loved ones financially after your passing. Furthermore, having a sound will can prevent all the stress of probate issues.
According to the American Bar Association, the probate process takes six to nine months. It can also vary depending on the case and your jurisdiction. For example, it can become a longer process for some states and take years. There are several factors mentioned below that need to be accounted for:
- The residence of the person who passed, meaning which state they lived in;
- How large the estate is;
- Whether the deceased had a will and;
- Whether or not the will is contested in court.
Some situations can arise when someone comes forward to contest the will. It is rare but does occur, and it can often delay the probate process further. The beneficiaries can challenge a will because they disagree with who needs to receive certain assets. In other scenarios, the legality of the will is questioned, for instance, if it was properly witnessed and whether or not it was completed under pressure.
How to Probate a Will?
You must be aware of your legal obligations once you are named as an executor of a will. One of these obligations is probating a will. The process of probating a will varies among various jurisdictions. Some major steps need to be followed to prepare a will properly. Below is a brief description of these steps.
First, you must show the death certificate to the court to initiate the probate process. You can also file a copy of the death certificate online through the probate court. Others close to the deceased besides the executor can take this step—for instance, a family member or even an estate lawyer.
Next, you need to file the testator’s will. The testator is the legal term for someone who wrote a will (usually the person who passed away). If the deceased had a will, it must be filed with the court. Some timelines must be adhered to when filing this. Generally, most states allow around 30 days to three months after the testator’s death.
Furthermore, the court needs to take a closer look at the will and determine whether or not the will is legally valid. The court will examine the details regarding the document’s date, the testator’s signature, and the signatures of their witnesses. Moreover, the court can call the witnesses to confirm the document’s validity.
Once the will is validated, the probate court assigns a representative to manage and administer the estate according to the deceased wishes. Some issues may arise even after you get selected as the executor. For instance, if you decline to be the executor or a person comes forth to challenge the will.
After you become the executor, you must form an inventory of all the assets and liabilities of the estate. You need also to evaluate each property to determine its worth. The inventory can consist of property such as real estate, vehicles, and furniture. It can also include financial assets, like bank and investment accounts, and digital assets, like cryptocurrency. Other assets may require a professional appraiser to figure out their value. In addition to the assets, you must determine all the outstanding debts, such as a home mortgage, car loan, or medical expenses.
You need to contact the beneficiaries and creditors to determine a plan to repay all the money owed. A beneficiary is someone who will receive something from the testator’s estate. The beneficiary does not need to be a person per se; it can also be a charity cause. Your legal responsibility is to contact them and inform them about their gift.
Remember that for any assets going through probate, creditors must be paid for outstanding debts before any beneficiaries receive assets from the estate. Lastly, you must distribute the assets to beneficiaries once debts are paid. You must follow the will to distribute the rest of the estate to beneficiaries. Estate assets can include the following:
- Any real estate property, such as a home or parcel of land;
- Boats, cars, and campers;
- Bank and brokerage accounts;
- Pets;
- Family heirlooms and personal items, including clothes, books, and furniture and;
- Digital assets (cryptocurrencies).
When Is Probate Necessary?
The probate process is necessary when the will is poorly planned or written. Nowadays, the probate is more simplified and less complicated. Also, if you have a sound legal estate plan in place, you may be able to avoid probate altogether.
If you properly plan today with the right tools, your loved ones will not have to face challenges when it comes to the property distribution of your estate. Creating a trust with assets will allow you to bypass probate.
Probate is considered a supervised process that ensures the proper beneficiaries receive the appropriate titles and assets from your estate. The court will assign a personal representative for your estate if there is no will. As mentioned above, this representative will be responsible for all the management of the estate and administrating accordingly. Some assets and property in an estate will always go through probate, while others (like those in a Trust) will not.
When Do I Need to Contact a Lawyer?
There is a lengthy process to probate a will, but not all situations warrant one. Therefore, understanding how the probate process works and what assets apply to it can assist you in finding out how to proceed. The local courts determine the probate process. If you have issues probating your will, you can consult a local probate lawyer to help you with your case.
