The Probate Process
In a probate proceeding, the court oversees the process of identifying a deceased person’s property, paying any debts, ascertaining heirs (survivors), and distributing the property. Most of the actual work is done by a personal representative, also known as an executor, executrix, administrator, or administratrix, who is usually a family member, loved one, or friend of the deceased person.
The personal representative will fulfill their fiduciary duties by filing letters of administration before a probate judge and with the assistance of an attorney, an accountant, and possibly appraisers, depending on the nature of the assets involved. If you are a survivor or beneficiary of a deceased person’s estate, a qualified probate attorney can help you understand the probate process and the steps you can take to minimize or avoid it altogether.
Who Is the Personal Representative?
The personal representative (a person, bank, or trust company) 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 that may vary by jurisdiction. These include death certificates, original wills, codicils (will amendments), trusts, financial statements, income tax returns, real property listings, and evidence of all of the decedent’s assets at the time of his or her death.
If there is a valid will, the personal representative is normally named in the testator’s (decedent’s) will. If a will is not available or if a will fails to name a personal representative, the probate court decides who will administer the estate. An heir or interested party can always file a form asking the court to appoint them for this position.
How Are Probate Assets Distributed in a Probate Proceeding?
After the court determines which assets are non-probate assets (depending on state laws), the estate is typically administered in one of three ways:
- By Affidavit (Summary Administration): If the total value of the probate assets in an estate is less than your state law’s specified amount (typically between $25,000 and $100,000), an heir may be able to fill out an affidavit for administering the estate. The person holding the assets would then release them to the heir 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 needed when there is a dispute among the parties who have an interest in the estate. In this situation, the court has to settle the dispute and attorneys are likely to be involved the entire time.
Laws vary from state to state, and how estates are administered can differ greatly. The above are general scenarios of typical estate administration.
In an informal administration, the personal representative can pay the estate taxes, debts, and other liabilities. The personal representative will then distribute the probate assets according to the instructions in a valid will or under the laws of intestacy when there is no will if the decedent died intestate (without a valid will). At the end of the informal administration proceeding, an estate may be closed by filing with the court a form that states the representative has paid all debts and taxes and distributed the property to those entitled to it.
Estate administration can take as little as six months for simple estates or up to several years for more complex matters, especially if there are disputes. The typical amount of time estate administration takes one to two years from the decedent’s date of death.
What if a Dispute Results in Probate Litigation?
Probate litigation is the process of challenging a specific section of a will, a codicil, the appointment of the personal representative, or the entire contents of a decedent’s last will and testament. The facts of each dispute will define the exact cause of action (e.g., lack of mental capacity, undue influence, duress, intentional interference with an expectancy, and/or improper signing of the will) that needs to be prosecuted or defended.
In this context, a Notice of Administration will advise concerned parties that an objection to the probate proceedings must be commenced within a certain period of time or be forever barred. The attorney representing the recipient of a Notice of Administration is typically the one who initiates the probate litigation.
How Can Probate Court Be Avoided Altogether?
In many states, there are summary procedures that allow probate to be avoided if the value of assets is below a certain amount, or where the only beneficiary is the surviving spouse.
For example, in California, probate can be avoided entirely for small estates valued at $184,500 or less. In most cases, property held in joint tenancy or with a beneficiary designation is not counted included in the amount. Also for the purpose of small estate administration in California, no more than $61,500 can be held in real estate. In many states, including California, Ohio, Texas, Missouri, New Jersey, and Georgia, a personal representative can file a “Small Estate Affidavit” form to avoid probate.
If the size of your estate is not small enough to avoid probate, you should consider a trust in order for your assets to be distributed outside of probate court. A living trust is sometimes marketed as a way to allow you to “avoid probate.” Property passing through a living trust upon the death of the grantor can avoid probate but probate laws are different in every state.
Proper estate planning with a detailed will can eliminate some of the probate proceeding steps. Many of the delays beneficiaries have to deal with are associated with tax laws, tax filing requirements, and disputes, which a living trust may not be able to avoid.
The combination of a will and a living trust serves as an effective estate planning method for avoiding the probate court system. A simple will is generally still required to “pour over” any property that has not been transferred to the trust during life.
Do Annuities Avoid Probate?
Many types of property, including annuities, routinely pass outside of the probate process, including:
- Annuities with designated beneficiaries
- Life insurance or retirement plan proceeds which pass to a named beneficiary rather than your estate
- Real estate or bank or brokerage accounts held in joint names with the right of survivorship
- Bank and brokerage accounts with designated beneficiaries
How Can I Find a Probate Lawyer?
The probate process can be complex and time-consuming. Depending on the jurisdiction, location and date of death, and the circumstances of a decedent’s estate, probate may play out in a variety of ways. A probate attorney can help with legal advice regarding the nuances of the law and the best way to navigate these difficulties in a manner that will allow you to minimize costs and resources.