The term probate refers to the legal process in which a person’s assets are to be distributed upon their death, according to their will. The probate process involves a series of legal filings and hearings which are presided over by a probate judge.
The probate process generally involves the following steps:
- Determining and proving the validity of the decedent’s will;
- Submitting an inventory and appraisal of the decedent’s property;
- Ensuring that all of the estate’s taxes and debts are paid; and
- Ensuring that all of the estate assets are distributed either according to the decedent’s will, or in accordance with the intestacy laws of the state in which the testator died.
Generally speaking, the estate executor is the person who is responsible for initiating the probate process, and distributing the estate’s assets to the beneficiaries. This person is generally named in the will. If the named executor fails to initiate the probate process, any party that has an interest in the estate may be allowed to initiate the probate process.
Interested parties include any party who could gain from the will, such as a creditor or beneficiary. If there was no executor named in the will, or if the named executor is otherwise unavailable, the court will then appoint an executor of its own to oversee the probate process.
Simply put, the belongings and property of a deceased person are distributed to their surviving family, friends, and beneficiaries. The probate process occurs through state-defined procedures when the person has died without a valid will; additionally, in many states, the estate must be valued above a specific value which varies from state to state.
How Does The Probate Process Vary From State To State?
It is important to reiterate that the probate process differs from state to state. The majority of states have adopted the Uniform Probate Code (“UPC”), which was established with the goal of streamlining the probate process by making probate administration simpler and less expensive. The States that have utilized the UPC have generally done so in order to standardize the probate process across state lines.
Additionally, some states allow for a more simple probate process for considerably smaller estates. Generally speaking, a smaller estate is an estate that has a total property value of less than $100,000. However, what is considered to be a small estate depends on state law. As such, your state may allow you to skip the entire probate process if your estate meets specific requirements.
An example of this would be how in Texas, a Small Estate Affidavit may be filed in order to transfer property to a decedent’s heirs if the value of the estate, not including the homestead property or other exempt property, is less than $75,000.00. Another example would be how as of January 1, 2020, California probate courts allow a decedent to transfer assets to their heirs and avoid a formal probate proceeding if the total value of their estate is less than $166,250.00.
Is Probate Recommended?
Probate is the default mechanism for distributing a decedent’s property if they have not created a valid will prior to their death. The general issue with probate is that at times, it can create considerably unfavorable property distributions for the beneficiaries.
An example of this would be how the decedent may have wanted to bequeath a certain piece of furniture to a grandchild. However, without a will designating this distribution, the furniture will most likely go to the decedent’s spouse or children instead. This is because these categories receive distributions first, according to most probate laws.
A much more preferable approach to property management is to create a written will that clearly states how property is to be distributed upon death. As such, the decedent’s survivors will not have to be subjected to probate decisions, which can be time-consuming.
How Long Does Probate Take?
How long the probate process may take largely depends on the size of the estate involved. However, you should expect probate to take an average of 7 to 9 months for most estates. To reiterate, this can be a considerable amount of time when compared to distributions made according to the instructions in a valid will.
Additional time may be required in case other legal issues are involved, such as:
- Will disputes and distribution contests;
- Disagreement amongst the beneficiaries; and
- Large estates that are considerably complex, such as property located in different states or other countries, large amounts of valuable property, etc.
What Is The Order Of Actions In A Probate Proceeding?
In a probate proceeding, the first step is to appoint an executor who will administer the decedent’s property. The executor will make several important decisions, such as:
- Helping to inventory the property;
- Contacting beneficiaries; and
- Reviewing various estate documents.
Once the decedent’s property has been fully inventoried, the decedent’s debts and tax matters are addressed. The process of paying off creditors for any outstanding payments may also begin here, which can reduce the inheritance shares of some of the beneficiaries. Creditors generally have a limited time in which to respond to the court regarding the satisfaction of debts.
Once debts have been addressed, the property can then be distributed to the beneficiaries. Each stage in the probate process can take several weeks, and as such, the entire process can take several months to well over a year.
What Is a Probate Estate?
A person’s estate can include:
- Real property, such as land, or a home;
- Personal property, such as a car or furniture; and
- Other non-physical assets, such as bank account funds and securities.
To reiterate, if a person died “intestate,” or without a valid will in place at the time of death, their estate will inevitably pass through probate. The process may result in an unequal distribution of the property, or the property may go to a different recipient than was intended by the decedent. Additionally, a portion of the estate may “escheat,” or be claimed by the state, without any of the decedent’s survivors being able to claim it.
States have certain requirements regarding providing notice for hearings, and allowing the estate to stay open for a period of time in order to allow creditors to file claims. This amount of time is generally 120 days.
Once again, the most obvious way in which to avoid estate probate is to have a written will in place before your death. By having your last wishes detailed in writing, you and your survivors avoid a considerable portion of the confusion associated with probate court. There are other ways in which to avoid probate as well, such as giving the asset away as a gift while the estate holder is still living.
Do I Need An Attorney For Any Issues Involving Probate?
A probate lawyer can assist with estate planning and will drafting, so that the estate can avoid the probate process after death. Attorneys may also advise regarding the tax implications of certain aspects of the estate plan. An example of this would be the difference between gifting an asset and allowing it to be distributed by the terms of a will.
If you have questions regarding estate planning, or are experiencing issues associated with probate, you should consult with an experienced and local probate lawyer. An area attorney will be best suited to help you understand your legal rights and options according to your state’s specific laws regarding the matter, and will represent you in court as needed.
