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Probate

ProbateWhen a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If the assets of the deceased were owned through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of the deceased’s assets. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.

 

The probate process for each estate is unique, but usually involves the following steps

  • Filing of a petition with the proper probate court.
  • Notice to heirs under the will or to statutory heirs (if no will exists).
  • Petition to appoint Executor (in the case of a will) or Administrator for the estate.
  • Inventory and appraisal of estate assets by Executor/Administrator.
  • Payment of estate debt to rightful creditors.
  • Sale of estate assets.
  • Payment of estate taxes, if applicable.
  • Final distribution of assets to heirs.
  • Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

Certain types of assets are “non-probate assets” and do not go through probate. These include:

  • Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
  • Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  • Life insurance policies.
  • Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  • Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.

 

Frequently Asked Questions

How much does probate cost? How long does it take?

The cost and duration of probate can vary substantially depending on a number of factors such as the value and complexity of the estate, the existence of a will and the location of real property owned by the estate. Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay. Common expenses of an estate include Executors’ fees, attorneys’ fees, accounting fees, court fees, appraisal costs, and surety bonds. These typically add up to 5 to 7 percent of the total estate value. Most estates are settled though probate in about 9 to 18 months, assuming there is no litigation involved.

Who needs a will?

Most people should have a will. Even if you don’t think you need a will to distribute your property, you may need to make a will to name an executor or guardians for your children.

Do I need an attorney to draft my will?

It is always better to have an experienced trained professional draft the document that will divide your estate. Many times people attempt to write their own documents and omit key legal terms and conditions. When the Will is admitted to probate things happen the decedent never intended such as the executor being made to be dependent on the court’s approval for everything they do, property not divided as the testator intended, ademption of bequests or even invalid wills.

What are the executor or personal representative’s duties and obligations?

A personal representative must follow state law to wrap up the decedent’s affairs. The main duties include:

  • Giving the proper notices to the proper parties
  • Collecting all the decedent’s property
    • Receiving claims against the estate
    • Paying just claims and disputing others
    • Selling estate property, as needed
    • Distributing the estate property according to the will or state law
Does every estate need to be probated?

Not every estate requires probate. If there is only a homesteaded property and less than $50,000.00 in the estate there are simpler ways to transfer title to the property and collect the estate assets for distribution.

How do I contest a will?

To contest a will, you will have to file papers with the court explaining why the will shouldn’t be upheld as-is. You must have valid grounds for contesting a will—those include, incapacity, fraud, undue influence and duress. If you want to contest a will, get help from an attorney. 

 Let the LAW OFFICE OF SHANNON W. BROWN, PLLC guide you and your family through this complex process.  (281) 372-6462