Back Probate Law & Process in the United States

Probate Law & Process in the United States

Probate law is an area of the American judicial system which handles estate matters. Effectively, if you or a family member passes away, probate court deals with any and all legal matters associated with your assets or liabilities that are left behind. 

What is Probate Law?

Probate law refers to the legal process that gives someone, the executor, the power to distribute assets as laid out in a will. It is also probate law that determines the validity of a will. 

How Do Probate Laws Work?

Probate laws dictate the rules for many issues, and in the event that the rules are not followed,the courts have ways to rectify the problems that may arise. Probate laws work in the following ways:

  1. To acknowledge the validity of a will
  2. To determine the executor of an estate
  3. To figure out if all of the assets can be handled by the executor or whether the court has to get involved to make a decision

When a deceased person's trust or will has an appointed executor, that person functions as the personal representative for the deceased person. That means if the decedent owned personal property, such as a house or a life insurance policy payable upon death, the appointed executor will be responsible for transferring money and closing any bank accounts. The executor must follow the decedent’s wishes that are stated in the will in order to distribute the assets appropriately and according to the decedent’s wishes.
A basis for any flawless distribution of assets or liabilities after a person passes away is a properly-drafted Last Will and Testament Template. When everything is done to the point and you have this document, a probate court divides your estate and bequeaths assets to those you wish to inherit them, without any challenges along the way. 

Examples of Probate

Probate is applicable to any situation where someone dies and their assets have to be distributed, whether it is to their family, friends, or their favorite nonprofit foundation. 

Probate cases can become very complicated when in some circumstances. For example, when a change to the will is made at the last minute. People tend to view this suspiciously and might go to court to contest the will, arguing that the deceased person changed the terms of the will under duress or when they weren't of sound mind. This can happen when a new caregiver steps in for the final years of someone's life and the decedent suddenly leaves all of their assets to that caregiver instead of the family.

The Steps Involved in the Probate Process

The basic steps of probate are initiated whenever somebody dies and their money and property in the estate has to be distributed. The distribution process requires several steps including the following:

Step 1:

The first step takes place before probate is even initiated. This step requires determining who the personal representative is going to be. Most wills include a section or a provision that stipulates who the executor of the estate or personal representative will be. If the will doesn't list a personal representative, or the person who died doesn't have a will at all, probate court might choose a close family member or surviving spouse as the personal representative. That individual takes legal possession of any and all assets belonging to the deceased, and they are then responsible for following the next steps and distributing everything accordingly.

Step 2:

Next, there must be a petition filed with the state court. That petition has to be filed in the county where the decedent lived when they died. This will result in a hearing to be scheduled within 30 days. The scheduling process can take longer in some states, depending on the court’s availability, and the process varies from state to state as well. However all states require that a petition be filed.

Step 3:

After the petition has been filed and the courts have been made aware of the death, everyone else has to be made aware too. This notice of the hearing must be published so that all of the family members, heirs, and creditors to whom the deceased might still owe money are aware that they passed and that the estate has gone to probate. Notice has to be given to potential creditors and everyone specifically listed in the will. In the event that there is no will, a notice must be mailed to all potential legal heirs. In some states, such as California, it’s required that the notice of the probate hearing be published at least three times in a newspaper where the deceased lived when they passed.

Step 4:

The personal representative or executor is responsible for collecting any and all property under the estate. Not all property is necessarily subject to probate. For example, if there is a home or a car that has to be transferred to someone else, the personal representative is responsible for transferring that. The courts will require the personal representative to supply an inventory of all estate property, within reason. This doesn't mean the executor has to provide the court with a detailed list of every single knick-knack the deceased owned.

Step 5:

Any legitimate debts that are still owed must be paid. Creditors can submit a claim within a few months of the estate going into probate. If they are valid, then they get paid by the money or assets that are still a part of the estate before everything gets distributed to the heirs.  

Step 6:

If there are any income taxes or estate taxes, they must also be paid before any money is distributed to beneficiaries. If there are unpaid taxes, the personal representative is not liable on a personal level. However, if taxes were not paid and the estate has been distributed anyway, leaving not enough money to pay any remaining taxes, there can be legal ramifications for the personal representative.

Step 7:

The final step is to close out probate. Once all the transactions have taken place, the personal representative submits an invoice of those transactions to probate court. They file a petition with the court that summarizes all the actions they took and any fees they paid. This includes listing the fact that they paid  themselves and an estate attorney as well, if applicable. If there are accounting objections made by heirs or beneficiaries, the court will decide whether they are valid. 

How Long Does Probate Take?

The process for probate depends on how complicated the estate is, but it can take an average of six to nine months. Some estates can be processed in a matter of weeks, while others might take a few years.

Factors that May Slow Your Probate

So what slows things down?

  • If there is no will, then the court has to pick someone to be the executor. There might be many family members who wish to be the executor, and the court has to determine which one is most qualified. This can add a few months to the process.
  • If there are estate taxes, it will take much longer to finalize the process because all of the taxes have to be properly paid and accounted for with the courts before anything can be distributed.
  • If somebody contests the will saying, this will significantly delay the proceedings.
  • If there are a lot of beneficiaries, it is statistically more likely that one of them will have an issue with the way the assets are distributed and might contest it in court, extending the process.

What Happens in Probate Court? 

In probate court, an individual is appointed to collect all of the assets, pay off all of the debts and expenses, and then distribute what is remaining to the beneficiaries or the heirs.

Avoiding legal probate

You can work proactively to avoid probate after your death by utilizing estate planning. Estate planning must follow state law, and helps you create a legal document for the proceeding upon your date of death. The more efficient and well-planned your estate planning, the more likely it is that your assets can be distributed to any beneficiaries in a hassle-free environment without having to go through probate.

Tips: wills and probate law

A good tip to avoid problems with probate law is to set up an ironclad will. A law of wills necessitates that you have instructions for all of your assets, otherwise they will end up in probate, distributed by the courts. There are several probate cases where a will might clearly explain where half of the assets should go but not the other half, in which case everything gets tied up in court.

Tips: following probate laws

Depending on where you live, your will might need to be notarized and you may need witnesses in order for it to be valid. Making sure that you do that ahead of time will help you stay on the right side of the law and make it much easier for your family and beneficiaries when you pass. Make sure that you follow all probate laws by appointing an Executor who will be personally responsible for your legal document. Also make sure they are someone who can handle the responsibility, and have a backup listed just in case the first person is unable to complete the responsibility.

Conclusions

The laws for probate in each state are slightly different, which is why it is recommended that if you are trying to start the probate process or you need to know how to contest a will, you work with an attorney. Thankfully, most probate proceedings don't take very long and they aren't particularly expensive compared to most other areas of managing an estate. 

Frequently Asked Questions

I have a small estate. Do I have to go through probate?
Every state has a different law for what value triggers probate. In some states, only estates that have assets valued at more than $160,000 have to go through probate.
What is a probate asset?
A probate asset is an asset that is held in the name of the person who recently passed. If something is owned in joint tenancy or is under someone else's name, it is not considered a probate asset.
Can I see the will of someone who recently died?
If the estate is legally in probate, you can visit the Superior Court in whichever county the deceased lived at the time of their passing and ask to see their file, which will include the will and any documents related to the will.
Can funeral expenses be deducted from the estate?
Funeral expenses and final bills can be included in these creditor claims, meaning if the executor is responsible for setting up the funeral and any necessary services, the cost of that can come out of money sitting in the bank account of the deceased.
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