The probate process refers to the formal legal process in which the estate of a deceased individual, called a decedent, is handled under the supervision of a court. In some jurisdictions, a probate court may be known as a Chancery Court or a Surrogate Court.
The probate process may be used to:
- Establish the legal validity of a will;
- To distribute assets to beneficiaries named in the will; and
- To pay off taxes or debts that are owed by the deceased’s estate.
The five main steps of the probate process include:
- Filing the will in the proper probate court and notifying the beneficiaries;
- Providing notice to creditors;
- Taking an inventory of the estate’s assets;
- Paying outstanding expenses from the estate; and
- Distributing the assets to the beneficiaries named in the will.
What are Some Important Stages in the Probate Process?
Having an understanding of the probate process can help individuals avoid various disputes and will contests that may arise upon the death of a loved one. Important stages in the probate process include:
- Proving that the will is valid;
- Identifying and appraising the property of the estate;
- Managing the payment of any debts or taxes related to the estate; and
- Distributing property as defined by the will or state law.
The probate process typically begins with a petition in the local probate court. The executor, or individual handles the estate, will be appointed. A notice of the hearing will be sent to any named beneficiaries informing them of the date, time, and location of the hearing. The notice of the hearing may also be published in the county newspaper where the petition was filed.
Next, any creditors of the estate must be notified. This allows the creditors to make claims they may have against assets in the estate.
The executor will then take a complete inventory of the assets of the estate. It is important to note that prior to any assets being distributed to any beneficiaries, all expenses related to the probate process must be paid from the estate. These expenses may include:
- Burial or funeral expenses;
- An award to the surviving spouse or child;
- Debt owed to the United States;
- Funds owed to employees of the deceased;
- Debt owed to any city, township or county therein; and
- Other miscellaneous claims.
After all expenses of the estate have been paid and all creditor claims have been settled, assets can then be distributed to the beneficiaries. The executor will petition the court for the distribution of the assets in accordance with the will, if one exists, and, if not, in accordance with state law. After the court grants the petition, the executor will:
- Create a new deed for real property, if applicable;
- Transfer any stocks or other funds, if applicable;
- Liquidate any assets as necessary, and
- Take care of any remaining loose ends.
Should Probate be Avoided?
It is possible to avoid the probate process. The process is often time consuming and may result in serious disputes over property. It may also be costly and cause private family matters to become public as probate hearings are matters of public record.
There are several ways an individual may be able to avoid probate, including:
- A living trust;
- A life insurance policy or bank accounts; or
- A joint tenancy with right of survivorship.
A living trust is formed when the owner of the property or assets is still alive. The property owner will appoint a trustee to manage the trust. In the event of the owner’s death, the trustee becomes responsible for distributing the contents of the trust to the named beneficiaries. The process can be completed with paperwork and does not require a probate court.
Ensuring life insurance policies or bank accounts are payable upon death can also help an individual avoid probate. The funds will be automatically distributed to the beneficiaries upon the death of the individual who owns the policies.
Probate can also be avoided for real property by setting up a joint tenancy with a right of survivorship. A joint tenancy gives individuals an equal interest in the property. If one party passes away and the other is still alive, then the surviving party automatically becomes the sole owner of the property.
How do You Contest a Will?
Contesting a will can be a challenging, time-consuming, and often costly process. If there is not enough evidence to show that the basis for contesting a will is valid, a court is unlikely to interfere with a testator’s wishes as written in their will. It is difficult to dispute the terms of a will whose author is no longer available.
Not every individual who knows the testator has standing to contest the will. An individual who is named as a beneficiary in the will has standing to contest the will. The laws regarding standing to contest a will vary by state.
There are several legal grounds that allow an individual to contest a will. These may vary from state to state but typically include:
- Mistakes or errors in the will. These may proven or clarified by other documents authored by the decedent;
- Ambiguous language that is used in the will;
- A testator’s lack of mental capacity; or
- Fraud or duress during the creation or modification of the will.
Some wills contain an anti-contest provision which causes any beneficiary who contests the will to lose what they would have inherited under the will. It is important to be aware of the statute of limitations, or time limit, on filing a will contest in the jurisdiction where the decedent resided.
A will contest should be filed prior to the beginning of the probate process and before the lapse of any statutes of limitations. This is required in order to prevent indefinite litigation that would prevent any beneficiaries or creditors from receiving what they are due from the estate.
What Happens After a Will is Contested?
If a petition to contest a will is filed in probate court, a hearing is scheduled. During this hearing, the court reviews the will itself as well as evidence offered by both sides of the will contest.
If the court finds a will to be invalid, it may request previous drafts or surviving copies of the will. If they exist, the court will follow the directions therein. If one does not exist, the court will treat the estate as if the decedent died without a will. The estate is then distributed according to the intestacy laws of the state in which the probate proceeding is held.
Do I Need a Lawyer for the Probate Process?
Yes it is essential to have the assistance of an experienced probate lawyer for any probate issues. As noted above, the probate process may be time-consuming, expensive, and complex. An attorney can help you with the filing process and ensure your interests are protected.
If you are appointed an executor of a will, there will likely be many duties that you will not know how to complete without professional help. A lawyer can help you with those duties and refer you to other necessary professionals, such as tax professionals.
If you need to probate a will, it is important to have help from a local attorney who is experienced and familiar with the probate laws and requirements in your area. A lawyer will be able to help you with any issue related to a will as well as represent you during court proceedings, should any disputes arise.
