What Is Probate Court?
Probate court is a specialized type of court that deals with the property and debts of a person who has died. The basic role of the probate court judge is to assure that the deceased person’s creditors are paid, and that any remaining assets are distributed to the proper beneficiaries.
The Process of Probate Court
The process of probate is initiated when a person files a petition for probate with the state’s probate court system. This petition is normally filed by a family member of the deceased or by a designator of the deceased’s will. The probate court then issues an order that appoints a person to be the executor or administrator of the deceased’s estate. The executor or administrator is responsible for allocating the deceased’s estate to the proper beneficiaries, among other administrative duties. A probate lawyer is often hired to help deal with the intricacies of probate.
What Is Probate?
Probate is a legal procedure by which a court oversees the distribution of property of a person who has died. Many states have a specialized probate court. In some states it is called by other names, such as Surrogate’s Court, Orphan’s Court or Chancery Court. The court appoints someone to take control of the deceased person’s assets, ensure that all debts are properly paid, and distribute the remaining property to the proper beneficiaries.
Probate Without a Will
When a person dies without a will, the property is distributed to the deceased person’s next of kin, as determined by the state’s probate law. This part of the probate law is known as the law of intestate succession. It outlines the order in which the next of kin inherit. A surviving spouse gets a share of the decedent’s property. The law further breaks down the order in which grandchildren, siblings, parents, and aunts and uncles inherit. The details vary from state to state. In a sense, the law of intestate succession can be considered to be the “will” the state makes for you if you don’t make your own.
Probate With a Will
When a person dies with a will (most often titled a last will and testament), the property is distributed to the people or organizations (such as charities) the will designates to receive it. To probate a will, the court must also make a determination that the will is valid. If someone contests the validity of the will, the court will decide the matter. In all states, even if there is a will, a surviving spouse is entitled to a certain share of the property. This is called the surviving spouse’s elective share and the amount of the share varies by state. In community property states, barring a separate agreement between spouses, one half of the property earned by the couple during marriage belongs to the surviving spouse, and the will dictates how the decedent’s share of the community property and the decedent’s separate property are distributed.
The Probate Process
The probate process begins with someone filing a petition for probate with the probate court. This is usually done by a relative or someone designated in a will. If there is a will, a copy of the will must also be filed (unless it has already been filed in one of the states allowing filing prior to death). Some states provide official probate court forms. The court will then issue an order appointing someone to represent the estate. Generally, this person is called a personal representative or executor, but may also be called an administrator if there is no will, and an executor if there is a will. Most, if not all, wills designate someone to fill that role. The personal representative is responsible for handling the administration of the estate. This involves such things as:
- Opening an estate bank account
- Arranging for publication of legal notices in a newspaper
- Determining the validity of claims by creditors and paying them (especially the funeral costs and final medical bills)
- Sending notices to beneficiaries
- Selling assets if necessary
- Filing court documents
- Filing a final tax return for the deceased person
- Transferring assets to the beneficiaries.
- Often, the personal representative hires a probate lawyer to assist in some of these tasks.
The Cost of Probate
The costs of probate include, among other things, court filing fees, costs for publishing notices in newspapers, and attorney’s and executor’s fees. If the estate is complex, there may also be fees for an accountant. Fees for a probate attorney may be based on an hourly rate, a percentage of the value of the estate, or a combination of these. A probate can take months, or even years, to complete. For an average modest estate, it can take from six months to two years. The longer it takes, the more it costs. If any heirs contest a will, things get more time-consuming and expensive.
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FAQs
What Happens at a Probate Court Hearing?
At a probate court hearing, the judge will list the responsibilities of the executor of the will, including contacting any beneficiaries, creditors, appraising their assets, and paying any outstanding creditors and taxes.
Do You Have to Go to Probate Court When Someone Dies?
Each state has specific probate laws to determine what’s required. Unless someone has no assets or descendants when they die.
How Do You Avoid Probate Court?
While it can be tricky to avoid probate court completely, some ways to avoid probate include creating a living trust, naming beneficiaries clearly on all investment,
