What is Probate?
Probate is a legal process for settling the debts of someone who has died and distributing the remaining probate property to rightful heirs.
The probate process generally involves use of a set of specific forms, time lines and procedures which vary depending on the state and county where a probate case is filed.
During a probate process, a judge supervises the actions the estate representative takes, such as:
- Gathering the decedent’s probate assets so they may be distributed.
- Notifying heirs and creditors of the administration of the decedent’s estate. Wills have a prescribed period for creditor’s claims. Once that time is passed, the claims of creditors are eliminated.
- Accounting for the decedent’s assets and debts, and payment of creditors and taxes.
- Paying of administrative and attorney’s fees.
- Distributing the decedent’s probate property to the rightful heirs
Probate is required when the estate includes probate property.
Several other sections on the web site relate to the probate process. The “Probate Asset” section describes how an estate representative can determine probate property. The “Who’s In Charge “section describes how to determine who is in charge and responsible for administering probate.
- Why is probate necessary?
- When is an estate subject to probate?
- What is a small estate probate process?
- Why doesn’t a Will avoid probate?
- What happens to probate assets if there is no will?
- Where are probate papers filed?
- How long does probate take?
- How much does probate cost?
- What happens to the debts of the deceased?
A. The intent of probate is to wind up the decedent’s financial affairs after his or her death. The probate process is intended to assure that the heirs and creditors receive their rightful share of a decedent’s estate. The states have created the process of “probate” to assure that certain people get notice of the administration of a decedent’s estate to allow them to make a claim, and for the court to oversee and hold accountable a person responsible for the collection and distribution of a decedent’s assets.
The probate process is also necessary to appoint a personal representative for the deceased. The court creates official court documents giving the appointed representative the legal authority to transact business on behalf of the deceased. During life, the deceased signs deeds or checks. After death, someone must have the authority to act on behalf of the deceased.
The authority documents are required in order to pass ownership of the decedent’s probate assets to the decedent’s beneficiaries. When a beneficiary makes a request to transfer title from the decedent to the beneficiary, the title owner will not honor the request unless the beneficiary includes the necessary authority documents provided by the probate process.
Q. When is an estate subject to probate?
A. It depends upon the types of assets the decedent owned and the way the assets are titled. The estate representative will need to make an inventory of all of the decedents’ assets. If the estate representative discovers probate assets, the estate is likely subject to probate.If the estate has probate assets, the estate will be subject to some type of probate procedure Click here to understand more about probate property.
A. .Most states have two types of probate procedures: simple and normal. The choice of simple or normal is based upon the combined value of your probate assets and the type of probate asset, i.e. real estate or personal property.
If the estate is classified as a small estate, some states allow the estate representative to create their own affidavits and manage the administration of the probate court without any involvement of the probate court.
Most states require the normal process when your probate assets include real estate.
If a surviving spouse is the primary beneficiary, some states have special procedures the surviving spouse can use.
Q. Why doesn’t a will avoid probate?
A. Your will directs the disposition of your probate property after you die. Although your will names beneficiaries for your assets, the probate court will not authorize distribution of the assets until the estate representative proves the proposed distribution follows the terms of your will and that the estate has assets necessary to pay the debts and taxes of the estate.
The court will then sign documents empowering the estate representative to transfer each asset’s title to the beneficiary named in the will.
County recorders, banks and brokerage houses require these document from the probate court authorizing the transfer of title to the new beneficiary.
Q. What will it cost your estate if probate is required?
A. Billions of dollars are spent each year for probate. Probate costs include court costs, estate representative costs, executor fees, attorney fees, bond fees and appraisal fees. In some states, the costs of probate can consume four to eight percent of the value of assets subject to probate.
There is a wide variance in what it can cost your heirs to open and file a probate case. Examples of such fees and costs include the following:
- The statutory fees your attorney and estate representative charge. Some states set “reasonable fees” as the statutory attorney fee . The attorney and the executor are paid for the hours they work. Some statues set fees as a percentage of the net value or the gross value of your estate. The attorney and the executor are paid a calculated fee, regardless of the number of hours they work. Click here to review the statutory fees the probate code allows for each state.
- The fees the costs charge to open a probate case at the probate court. Some states base court fees on a percentage of the gross value of your probate assets.
- The type of real estate you own. If you own real estate in another state or another county, it may be necessary to open a second probate case in that state and county and pay additional attorney fees and probate court filinf fees.
- The ability to use simplified probate procedures because the value of the probate assets qualifies for simplified small estate probate procedures.
Q. What happens to probate assets if there is no will?
A. A family member must make an inventory of the decedent’s estate and determine if the estate is subject to probate. If the estate includes probate property, a family member must then decide whether the estate is subject to simple estate probate procedures or normal probate proceedings The decedent’s assets will be distributed to the decedent’s heirs according to to the state’s intestate succession rules.
Q. Where are probate documents filed?
A. Probate documents are filed with the probate court in the county where the deceased is considered a permanent resident, not where the decedent died.
If the estate inclues real estate owned in another geograpical area, the estate representative wil need to open a anciallry probate case in that state.
Q. How long does probate take?
A. There is no standard answer. It depends upon the size and type of property the decedent owners, and whether or not the estate can follow simple or complex probate procedures. If a formal probate process is involved, the creditor notification process can take five or six months.
Q. What happens to the debts of the decedent?
A. A primary purpose of probate is to ensure the decedent’s debts are paid. The personal representative makes a list of the decedent’s debts. The probate procedures then notifies the creditors a probate case has been filed. The creditors then file a claim with the probate court, usually within a three or four month time period.
The personal representative must pay legitimate debts of the decedent before making distributions to the estate beneficiaries.
The estate representative is not personally liable to pay the decedent’s debts.
I have 3 minor children. I have not heard or seen from their father in years. He has no interest in them and has been violent in the past. How do I get a guardian for them in case I die. I have asked someone who is not a family member to take care of them and my finances.
Are heirs entitled to balance sheets and full financial disclosure on assets that are listed in a probated will where the heirs are to inherit a portion of those assets?
Probate is governed by local law, but in general, anything that goes through probate is public record.