Probate is the legal process where the court determines where someone’s assets should go after he or she passes away.
This process is crucial: it settles the affairs of the deceased, ensures that his or her wishes are respected, and that assets are distributed correctly.
Here’s a guide to understanding probate, its various forms, and who it’s for.
Understanding Probate: An Overview
Probate has a few, main functions:
- Proves the will’s validity (if there is one)
- Appoints someone to handle the deceased’s estate
- Ensures that the deceased’s debts are handled
- Distributes the estate according to the will (or state law if there is no will)
This process can vary significantly in complexity. Some factors include:
- Whether someone contests the probate action
- The size of the estate
- The location of the assets
- The number of heirs involved
- Specific laws of the state where the deceased resided
The Role of the Executor
An executor manages the probate process.
This person is sometimes called the “administrator” by the Court.
The executor manages the estate’s assets (with court supervision). They also pay off its debts and give what remains to the rightful heirs.
Typically, an executor is named in someone’s will. If there is no will, an executor (or administrator) will have to be selected.
Uncontested vs. Contested Probate
Uncontested Probate
Uncontested probate occurs when there are no disputes regarding the will. It is usually a simple process.
In an uncontested probate action, the court accepts the will as valid. The executor can distribute the assets as outlined in the will without any legal challenges.
Steps in Uncontested Probate
- Filing the Will: The executor files the will with the local probate court.
- Notifying Heirs and Creditors: Legal notices are published, and creditors are invited to make claims on the estate.
- Paying Debts and Taxes: The executor settles debts and any taxes owed by the estate.
- Distributing the Remaining Assets: After all debts and taxes are paid, the remaining assets are distributed among the heirs.
With no one contesting the action, the process tends to be straightforward.
Compare this to contested probate:
Contested Probate
Contested probate happens when someone challenges the will’s validity (or otherwise contests the probate action).
It tends to take significantly more time than uncontested probate, depending on the validity of the contest.
Common Reasons for Contests
Someone can contest a probate action for a variety of reasons, including:
- Validity of the Will: Disputes about whether the will was signed under duress, or whether the deceased had the mental capacity to draft the will.
- Interpretation of the Will: Disagreements on the interpretation of certain clauses in the will.
- Rights of Heirs: Conflicts over who is entitled to what portion of the estate.
This is not an exhaustive list, but includes some of the more common reasons for contesting.
The Court’s Role in Contested Probate
In contested cases, the probate court tends to take more control.
The court will examine the evidence, hear from all parties involved, and make decisions on how to proceed.
Depending on the validity of the contesting party’s argument, the court will determine next steps from there.
This can often be a lengthy and costly process.
Who Needs to Do Probate?
Estates With a Will
Generally, estates with a will go through probate to ensure the will is valid. The executor is formally appointed by a court.
Some states offer expedited probate proceedings for estates with a will (for example, a “muniment of title” proceeding in Texas).
Estates Without a Will
If someone dies without a will (intestate), probate is often necessary to distribute the deceased’s assets.
The court will appoint an administrator to handle the estate, similar to an executor.
In some states, there are some work arounds for certain assets (like an affidavit of heirship for real estate) but, in many cases, probate is necessary to fully settle the estate.
Small Estates
Many states have simplified processes for small estates (usually those under a certain dollar amount) which can bypass traditional probate.
This often involves less paperwork and less time to settle the estate.
It also tends to be much cheaper.
But it’s not always available. Check your state or county rules for what might be available.
How Expensive Is Probate?
Probate is a time consuming and expensive process.
It can often take months. Contested cases or complicated estates can take over a year.
Attorneys will typically charge thousands of dollars to work through a probate case. Court costs can be quite significant as well.
Thankfully, there are ways to avoid probate with careful estate planning.
But, that requires planning before someone passes away.
A good probate attorney will be able to move through a probate action quickly and effectively. But, even then, proceedings still often take months to complete.
Conclusion
Probate is an important legal process.
Probate ensures the right assets get to the right people.
Going through probate isn’t always necessary, but it often is.
If you’re unsure on where to start, reach out to a licensed probate attorney to figure out your next steps.
Any information contained in this website should not be construed as legal advice and is not intended to be a substitute for legal counsel on any subject matter. See our disclaimer for more information.