The Probate Process

In probate, the court oversees the process of identifying a deceased person’s property, paying debts, finding beneficiaries, and distributing the property. A personal representative does most of the work. The representative is also known as an executor, executrix, administrator, or administratrix. The personal representative is usually a family member or friend of the deceased person. 

The representative fulfills their fiduciary duties by filing letters of administration. If you are a beneficiary of a deceased person’s estate or a personal representative, an experienced probate attorney can help you understand the probate process.

Who Is the Personal Representative?

The personal representative can be a person, bank, or trust company. The representative is in charge of administering the estate as part of the probate legal process. Typically, a personal representative can start probate using a series of supporting documents. These include:

  • Death certificates
  • Wills and trusts
  • Income tax returns
  • Real property records
  • The decedent’s assets

If there is a valid will, the personal representative is normally named in the testator’s will. If a will is not available or it fails to name a personal representative, the probate court decides who will administer the estate. An heir or interested party can always ask the court to appoint them for this position.

How Are Assets Distributed in Probate?

The court determines which assets are non-probate assets and which are probate assets and subject to the court process. Then, there are different estate administration options:

  • By affidavit (summary administration): If the total value of the probate assets in an estate is less than your state law’s specified amount, beneficiaries may be able to fill out an affidavit to administer the estate. The person holding the assets would then release them to the beneficiaries without further action.
  • Informal: Informal administration means the estate is not court-supervised. Normally, attorneys have limited roles in these proceedings. How much the attorney does in these proceedings depends on how much help you need.
  • Supervised (formal): A supervised (or formal) administration is when there is a dispute among the parties who have an interest in the estate, such as beneficiaries or people who thought they should be named beneficiaries. In this situation, the court has to settle the dispute, which involves attorneys.

In an informal administration, the personal representative can pay the estate taxes, debts, and other liabilities that the estate owed at the time of the deceased’s death. The representative will then distribute the probate assets according to the instructions in a will. If the decedent died intestate (without a valid will), distribution will depend on the state laws when there is no will. The estate closes when the representative has paid all debts and estate taxes and distributed the property.

Estate administration can take as little as six months for simple estates. If there are disputes, it could take several years for more complex matters to resolve. The typical time estate administration takes is from one to two years from the decedent’s date of death.

Non-Probate Assets

Many types of property can pass outside of the probate process, including:

  • Annuities with designated beneficiaries
  • Life insurance or retirement accounts that pass to a named beneficiary rather than your estate
  • Real estate or bank accounts held in joint names with the right of survivorship
  • Accounts with designated beneficiaries

What if a Dispute Results in Probate Litigation?

Probate litigation is the process of challenging a last will and testament or the personal representative’s handling of the estate. This could include arguing that the decedent lacked the proper mental capacity to sign a will, was under undue influence or duress, or an improper signing of the will.

A notice of administration be issued that advises people that they have a time limit to object to any probate proceedings. If you have questions about the probate process, you should talk to your lawyer promptly.

How Can You Avoid Probate Court?

Many states have a small estate administration, where you can avoid probate if the value of the estate’s assets is less than a certain amount or if the only beneficiary is the surviving spouse. In most of these cases, property with a beneficiary designation is not counted as included in the amount.

If your estate is not small enough to avoid probate, a trust provides a way to distribute assets outside of probate court. A living trust is sometimes marketed as a way to allow your future beneficiaries to avoid probate after your death.

Proper estate planning can eliminate some of the probate proceeding steps as well. Many of the delays that beneficiaries have to deal with include tax laws, tax filing requirements, and disputes.

The combination of a will and a living trust serves as an effective estate planning method for avoiding the probate court system.

Get a Probate Lawyer’s Help

The probate process can be complex and time-consuming. Depending on the state, date of death, and the circumstances of a decedent’s estate, there are many different ways the probate process can go. A probate attorney can provide legal advice and help you to minimize costs and resources.

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