What is Probate?
Probate is the process that occurs after a person’s death, when the deceased person’s debts are resolved and their remaining assets are distributed. The probate process differs depending on whether the deceased had a will or not, as explained further below.
If the deceased had a will, the probate process includes validating the will, taking an inventory of the deceased person’s assets, appraising the value of the assets, satisfying all taxes and debts, and distributing the remaining assets to the beneficiaries named in the will.
Where there is a will, the executor named in the will has the responsibility to manage and distribute assets of the deceased. This begins with the filing of a petition in probate court in the county where the decedent lived or owned property requesting that the will be accepted by the court and the executor appointed pursuant to the will. Notice of the court hearing on the petition must be provided to all of the heirs and beneficiaries in order to provide them with an opportunity to object to the petition.
Where the deceased has no will, someone must petition the probate court to be appointed as the administrator of the deceased person’s estate to handle the probate process, and manage and distribute the assets.
Executor and Creditor Roles
Once the court has appointed the executor or administrator of the estate, state law determines who is considered a creditor of the estate and must be notified; creditors then have a limited period of time to make a claim on the assets of the estate. This time limit varies from state to state.
The executor or administrator takes an inventory of all of the deceased person’s assets, including real estate, bank accounts, and personal property. In some states, a court appraiser values the assets, while in others, an independent appraiser must be hired.
The executor or administrator then pays all of the estate’s debts and expenses from the assets of the estate, even selling assets, if necessary, to meet those financial obligations. Finally, once the waiting period for creditors to file claims has passed and all of the financial obligations of the estate have been met, the remaining assets of the estate are distributed.
Distribution of Assets
If there is a will, the assets will be distributed according to the provisions of the will (assuming the will complies with state law—notably, some states will not allow people to disinherit, or otherwise limit distribution to, spouses). If there is no will, the distribution of property is done according to state law, called the law of intestacy. The state law may not reflect the way the deceased would have chosen to distribute their assets. As a result, it is always preferable to do some estate planning and to have a will that clearly sets out the individual’s wishes for the distribution of their assets after death. A lawyer can help you prepare a will that takes a person’s individual circumstances and assets into account.
But, even having a will doesn’t guarantee that the probate process will be easy for the deceased’s surviving relatives and other beneficiaries. The probate process may involve a great deal of paperwork and appearances in court by attorneys, which can be expensive and time-consuming, particularly if the deceased individual’s assets are needed to pay for immediate expenses, such as medical care or education, or if there is any challenge to the will. The stress of dealing with the death of a loved one can also cause family strife.
In addition to having a will, there are several other strategies that may help individuals avoid the probate process, and ensure that their assets are distributed according to their wishes. You can read about these in our post, “How to Avoid Probate.”
Probating an estate and administrating a will can be a complicated manner, littered with legal pitfalls. To ensure that you navigate those pitfalls properly, hire an experienced probate and/or estates and trusts lawyer.
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