What happens during probate court?
Probate is the process by which a deceased person’s debts are settled, titled property is transferred, and assets are distributed to beneficiaries. In cases with wills or trusts, the probate’s court’s duty is to honor and execute an individual’s final wishes. Without a will or trust, the probate court settles the estate and distributes assets to beneficiaries according to the intestacy laws identified by the state. The process can take anywhere from 6 months to 2 years.
Is the probate process required?
Not always; probate court can be expensive, complicated, and time consuming. Many individuals engage in estate planning methods to get around it. Owning property jointly, living trusts, or accounts with a designated beneficiary payable-upon-death are all ways of circumventing the probate process. If the total value of the probate estate is small enough (in California, for example, the cutoff is $150,000) the heirs can claim the leftover assets through the filing of an affidavit.
A description of the probate court process
- File a petition and notify beneficiaries:
The probate court process begins when someone comes forth to file the “Petition for Probate”. In cases with a will, this is usually the “executor” named in the will. Without a will, the court will appoint an “administrator” to perform the same duties. The beneficiaries are notified, and notice of the hearing is often published in local newspapers to inform possible unknown creditors.
- Notify all creditors and take inventory of the estate:
The personal representative is responsible for notifying all known creditors of the estate. Their time to make a claim is limited and varies by state. The representative takes inventory of all the probate property, including stocks, bonds, real property, and business interests. Appraisal may be necessary. The detective work in this step is made easier by a comprehensive, updated will. Without one, this step can be challenging and time-consuming.
- Estate debts are settled:
This includes creditors, taxes, and funeral expenses. The executor or administrator may need to sell some of the assets to cover the deceased’s debts. Some claims on the estate may be shown to be without merit.
- Beneficiaries receive their inheritance:
Upon the expiration of the time period allowed for debtors to make claims on the estate, the personal representative petitions the court to distribute or transfer what remains to the beneficiaries identified in the decedent’s will. In the absence of a will, beneficiaries will be identified and prioritized through the state’s laws of intestacy.
Potential for disagreements and family fallout
Most estates pass through probate slowly, but unchallenged. A small percentage of wills end up being contested. Reasons the court could revoke a will include: the existence of a more recent will, illegal circumstances surrounding the creation or signing of a will (like forgery or fraud), or questions about the decedent’s mental state at the time of signing. Even after a will has been adjudicated, states allow a period for evidence to come forth proving the will is invalid. Sound estate planning is a way to spare families from these painful conflicts.
Make this process easier by having a plan
Losing a relative or loved one is never easy, but the grieving time can be made profoundly worse by ambiguity, conflicts, or the lack of a solid plan. The legal staff at the Law Offices of Jeffrey Lohman can help your family tackle these difficult conversations. Whether you need help navigating the probate court system, or would like to protect your family from additional stress when your time comes, contact us today for a free consultation.