Probate is a legal process for dealing with the assets and debts of someone who has died. It consists of the executor filing papers with a court, notifying creditors and heirs, and gathering and valuing assets.
Some states have laws that allow property to pass on to heirs without probate or through a simplified version of probate. But most estates will go through a formal probate. Click Here to learn more.
What is Probate?
When a loved one passes, dealing with their estate is emotional and stressful. Probate is a legal process that can be time-consuming and expensive, but it’s necessary to ensure their wishes are honored and their assets distributed properly.
The probate process involves locating and identifying the deceased’s final assets, paying their debts and distributing their estate’s property to the rightful heirs. State laws define what must be included in an estate and how that estate must be distributed. These laws aren’t the same across the country, so you’ll want to learn your specific state’s requirements.
If you have a will, the person named in it as executor is in charge of inventorying your estate’s assets, paying your debts and distributing your property according to your wishes. That person is called a personal representative (or an administrator, if you died without a will). To become a personal representative, you’ll file paperwork with the court that shows you’re a valid executor. The court will then schedule a hearing to approve you or hear objections from other parties.
During the probate process, you’ll likely be required to pay court filing fees and creditor notice fees. In addition, if you hire an attorney to handle your case, they’ll need to be compensated, which is usually a percentage of the total estate value. Depending on your state, you may also be responsible for securing and protecting the estate’s assets. This includes things like putting a home up for sale, taking care of utility bills or hiring employees at a business that’s owned by the deceased.
The probate process is important because it can help ensure the will was signed correctly. It also catches any unauthorized actions taken against the deceased’s estate and makes sure the estate’s creditors are paid. If the estate has no money left, it can be liquidated to pay off any outstanding debts. Lastly, the estate can be closed once all the above steps are completed.
How does Probate work?
Probate is a court-supervised process that authenticates the last will (if there is one) and transfers property from the estate to the deceased person’s beneficiaries. It includes locating and determining the value of assets, paying bills and taxes, and distributing the remainder to legal heirs. The process can take time and be expensive, but an experienced estate attorney can help to make it as efficient as possible.
When a person dies, the executor named in their will must file a petition with the Surrogate’s Court to initiate probate proceedings. The petition should include the original will, a copy of the death certificate and an estimate of the value of the estate. The executor must also provide a list of all known assets and their values to the court, as well as resolve any outstanding debts. All interested parties—beneficiaries and heirs at law—must be notified of the probate proceeding.
Once the petition is filed, the court will appoint an administrator to oversee the administration of the estate. This person will follow a set of county laws (known as intestate succession) to determine who receives your property, care for any minor children or pets, and pay any debts you have left behind. The administrator will also work with the executor to establish an inventory of your assets, identify family members and other heirs, and file tax returns.
Most states allow a certain amount of property to pass without probate or through a simplified procedure. This includes proceeds from an insurance policy, retirement accounts like a 401k and IRA, and certain bank accounts that have a designated beneficiary. In many cases, an estate attorney can orchestrate these types of trust funds so that they transfer immediately to the appropriate heirs upon your death.
While the probate process can be time consuming and expensive, it is a necessary step in honoring your loved ones’ wishes after you die. An estate planning attorney can help you determine ways to avoid the probate process altogether so that your family can settle your estate more efficiently and with managed legal liability.
What happens if I die intestate?
Despite the fact that no one likes to think about death, it is important to take steps to ensure your loved ones are provided for when you pass. One of the most important ways to do this is by creating a will and ensuring your executor is authorized to carry out your wishes after your death. Without a will, your estate could end up in probate, where the court makes decisions on your behalf. In such a situation, your loved ones and beneficiaries may not receive everything they are entitled to.
In the absence of a will, the state will determine who inherits your estate according to its intestate succession laws. This is a complicated process, and the results vary by state. In Pennsylvania, for example, heirs are allocated based on relationships (i.e. spouse, children, parents, siblings and descendants of deceased siblings). Intestate inheritances can also be impacted by preexisting arrangements such as living trusts.
If the person dies with a valid will, the personal representative named in the will must file an application for letters of administration (also known as an “initial petition for probate” or “grant of administration”) with the probate court. This application gives the executor or administrator authority to perform various tasks, such as locating and valuing assets, paying outstanding bills, selling assets as needed, and filing taxes.
The court will typically hold an initial hearing where it appoints the executor of the estate and authorizes him or her to begin the probate process. The executor must notify those to whom the estate owes money (creditors), communicate with beneficiaries, and inventory all assets. In many cases, the executor will have to sell assets in order to pay any debts left by the deceased. The remaining assets will be distributed to beneficiaries, as directed by the Will or the court.
If the estate’s debts and taxes are greater than its assets, the remaining balance is “insolvent,” which means it cannot cover the costs of settling the estate. During this process, the creditors will be paid in order of priority set forth in state law. Once this is complete, the executor will transfer any property deeds or titles into the name of the appropriate beneficiary.
How do I avoid Probate?
The death of a loved one can be emotionally difficult and stressful. Adding to the grieving process is the task of sorting out their estate and assets, and settling any taxes or debts. This is where probate comes in. Probate is a legal process that ensures the deceased person’s will is valid, their debts are paid and that their property is distributed to their heirs. The problem is that the process can be lengthy and costly, and many people want to avoid it altogether.
The good news is that it is possible to bypass probate with careful planning. A key component to this is establishing trusts. Trusts can help you to avoid probate completely and keep your family’s estate private. There are other methods to avoid probate as well, such as joint ownership and payable-on-death bank accounts. These methods will not eliminate all probate costs but can help you to reduce them significantly.
It is important to note that avoiding probate does not mean skipping out on your legal obligations as a fiduciary. The word “probate” means to prove, so probate proceedings are still necessary in order to validate the will and ensure that all legal duties are carried out.
For example, if your spouse owned real estate in Pennsylvania or Arizona (both of which require ancillary probate), those properties cannot be transferred until the probate court closes the estate. This can take months or even years.
You may also have a number of individually-owned assets that must be processed through probate, including investment accounts or portfolios, bank or brokerage accounts, and businesses. This includes personal property like furniture, jewelry and family heirlooms. There are several ways to avoid probate with these types of assets, such as joint ownership with right of survivorship or life estate deeds.
Talk to your attorney about these options and how they can benefit you and your family. They can guide you through the steps to avoiding probate and protecting your loved ones. Avoiding probate can save your loved ones time, money and stress after your death.