Probate court deals with matters related to the estate of a deceased person. This can include the distribution of assets, settling debts and other legal proceedings.
While it’s understandable that these legal proceedings can be overwhelming, being prepared will help ease the process. The following information will help you understand the probate process and how it works.
Table of Contents
What is Probate?
The death of a loved one is a difficult time, and dealing with their estate can be even more challenging. Fortunately, probate is a legal process that helps finalize and distribute a deceased person’s property.
During the probate process, the court will name an executor (or estate administrator if there is no will) to manage and settle the deceased’s estate. The executor is responsible for paying bills and distributing assets to the proper beneficiaries.
The court must also make a determination that the will is valid, which typically requires examining the witnesses to the will under oath. However, this step is often dispensed with in cases where the testator and witnesses signed a self-proving affidavit. Other required steps in a probate proceeding include listing all of the deceased’s assets and notifying individuals who may inherit. Not all assets require probate, for example, those that have designated beneficiaries like life insurance policies and 401(k) plans automatically pass to the beneficiary and do not need to go through the estate.
How Does Probate Work?
The process is typically initiated by the executor named in the deceased person’s will or a family member filing a petition with a court. This petition includes a copy of the original will, a certified death certificate, and a list of all personal assets including an appraisal for real estate. It also includes a listing of all debts, expenses, and tax obligations owed by the estate.
A judge will verify that the will is valid during a hearing and will appoint an executor to handle matters involving the estate. The judge will also provide heirs at law with notice of the probate proceeding.
While state probate laws differ, most states require that a deceased person’s estate go through probate. However, there are some assets that do not need to be probated such as joint accounts, life insurance policies with a beneficiary designation, and retirement accounts like 401k and IRAs. Also, property transferred to beneficiaries under a trust does not need to be probated.
What Are the Benefits of Probate?
In many instances, probate is a necessary step to ensure all debts and taxes are taken care of. It also limits the time for creditors to file a claim, which can reduce the amount of money beneficiaries have to spend on debt that might be wrongfully collected. Probate court proceedings are public, which can protect beneficiaries from ill-intentioned family members seeking to use the estate for their own financial gain.
Additionally, unless the Will outright waives it, most states require the executor or personal representative to post a bond, which is paid out of the estate. Attorney fees, accounting services, and professional appraisals all add up quickly. This money can chip away at the value of the estate and leave less for Beneficiaries. Lastly, in some instances, it can be helpful to have the court interpret ambiguous provisions of the Will. This can avoid future litigation and potential for resentment among Beneficiaries. This is why an experienced attorney can be so important to the process.
How Can Probate Help Me?
Whether you are creating your own estate plan or responsible for the estate of someone who has passed away, probate court is typically required. The purpose of the court is to ensure that a person’s wishes are carried out and that their debts and assets are distributed properly. The process may also involve establishing trusts, paying taxes, and settling the estate. Many states require that heirs and creditors be notified of the proceedings.
An individual can choose to hire an attorney to assist with the probate court help, but it is not always necessary. The court staff is generally helpful and offers limited assistance in completing probate forms. However, individuals should consider hiring an attorney if the case is complicated or contested. An attorney can also help individuals avoid probate by preparing their own estate plans. This can include naming beneficiaries clearly on investment, bank and retirement accounts, or by transferring assets into joint ownership. This is often referred to as bypassing probate.