What is Probate?

Probate is the court process through which assets of a deceased person are administered and distributed. Probate also deals with any debts of the decedent. “What is probate” is a more complicated question than one might think. It is important to ask yourself some basic questions to determine if you need to open a probate at all.

Is Probate Necessary?

Many times probate is not necessary. It depends on the type of assets, how the assets were owned, and the state decedent resided in. There are some assets that do not have to go through the probate process. These non-probate assets included life insurance policies with a designated beneficiary, and bank accounts that have a pay-on-death beneficiary. If the decedent owned real estate in joint names with rights of survivorship, the other joint owner would take title at decedent’s death, with no court involvement required.  This Probate and Non-Probate Assets Chart shows which assets are generally probate assets.

People often do estate planning simply to avoid having to open probate. Probate can be avoided completely if Decedent’s assets are held in a trust.  Court involvement is only necessary if assets held by decedent do not pass to someone else through joint ownership or a beneficiary designation. For example, if the decedent is the only person on the title or deed, and there is no pay on death designation, then probate would have to be opened so that the court can transfer ownership. Or, if the decedent owns an asset as tenants in common with another person, then probate would be necessary to determine how decedent’s portion of the property is handled.

What If There Is No Will?

Many people die without having a will.  If decedent did not have a will, or the will is invalid, then the Decedent’s estate will be governed by the intestacy laws of the state where decedent resided.  If decedent had a will, then the assets will be distributed according to its terms, but only if the will is admitted to probate by the court. A will can be challenged by interested persons, and the court will decide whether or not the will is valid.

How Does Probate Work?

The probate process involves several basic steps:

  1. The will, if any, is filed with the court. In some states, there is a requirement that the holder of the original will must file the will within a certain amount of days of learning about decedent’s death.
  2. The death certificate must be filed with the court.
  3. Someone (either the person nominated in the will or an interested person) petitions the court. Sometimes this is called the petition for administration. If there is a will, the petition will seek to admit the will. The petitioner will usually be the person named in the will to serve as personal representative or executor. If there is not a will, the petition will ask that the probate proceed under the intestate laws of the state.
  4. A personal representative or executor of the estate is appointed by the court. If there is a will, and the will is valid, the will is admitted to probate.  The personal representative has many duties. For example, the personal representative must give notice of the probate to all persons interested in the decedent’s estate. The personal representative must identify and inventory decedent’s probate assets.
  5. Decedent’s creditors must be notified of Decedent’s death. Upon notice, creditors can then file claims against the Decedent’s estate. The personal representative can either pay the claims or object to the claims. All of the creditor claims must be dealt with before the probate can be closed.
  6. The personal representative distributes the assets of Decedent’s estate. If decedent had a will, then the terms of the will control how the estate is distributed. If there is no will, then the laws of the state where the decedent lived will control.

How Long Does The Process Take?

How long the probate process takes depends on the circumstances of each case. If the decedent’s assets are straightforward, and there is no litigation, a typical administration should take about a year from the date the probate is opened. If there is a will contest or other litigation, then the estate can continue for years.

How Much Does Probate Cost?

The cost of probate will vary depending on the court. There are filing fees to file the opening paperwork, which can be several hundred dollars. In many states the personal representative is required to have an attorney.  The attorney for the personal representative can receive a reasonable fee from the estate assets. A personal representative is also generally permitted a fee from the estate assets.

Are Probate Laws The Same In Every State?

If probate is necessary, it must be opened in the county where Decedent was a resident. The laws are different from state to state. For example, some states are community property states, like California and Texas.  Community property laws make both spouses equal owners of property acquired during marriage. Upon one spouse’s death, community property laws will influence the distribution of property.  Therefore, it is important to know the laws that apply in the state where Decedent lived.

Do Widows Have Guaranteed Rights in an Estate?

State law varies widely in terms of the substantive rights of surviving spouses, and how those rights are enforced.


General Probate Issues

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