When a loved one dies, the assets of his estate are still in his name. The rights of ownership of these assets have to be passed down to his heirs and beneficiaries in order for them to have access to his estate.
What is a will?
A will is a legal document which is written by a testator containing instructions on how his estate should be shared among his heirs when he dies. Without the will, the assets of the testator won’t be distributed among his heirs in accordance with his wishes because his wishes won’t be known. The will also names the executor to the estate.
What is probate?
The legal system designed to transfer assets from the original owners of the asset who are deceased to their heirs and beneficiaries is known as probate. Probate is a legal process which validates the last will and testament of a testator. Probate is also a legal process which determines how the estate of a person who died intestate is distributed among his legal heirs an beneficiaries based on the laws of the state.
When is probate required?
Without probate assets cannot be passed down from the testator to heirs and beneficiaries of the estate. Probate is required both when there is a will and when there is no will.
When there is a will, probate is required to ascertain the validity of the will. This ensures that there is no foul play or undue influence such as coercion when the testator was writing the will.
Probate is required when there is no will to determine how the estate will be distributed among the heirs of the testator based on the laws of the state.
Also probate is required for assets which are above a certain dollar value. For instance, in New York assets which are above $30,000 are subject to probate why assets below this value do not require probate.
Assets which are not automatically owned by a beneficiary when the testator dies like those that are not in a trust, life insurance, jointly owned, TOD, POD, etc. are subject to probate.
What is the role of an executor?
The role of an executor includes:
- Initiating the process of probate by filing a request to commence probate to the probate court
- Locating and notifying the heirs and beneficiaries of the estate to inform them of the commencement of probate
- Settling of creditors, paying of taxes and bills owed by the estate
- Making an inventory of the probate assets and filing it in the probate court
- Ensuring debtors of the estate duly pay what they owe the estate.
- If need be they will be responsible for selling probate assets
- They monitor the rest of the probate process ones the probate court ascertains that the will is valid
- They ensure the will is followed to the letter and the wishes of the testator are respected.
What is the cost of probate?
The cost of probate is not standard, it varies based on the size of the estate, the state of residence, how complicated the will is, if the will is being contested, etc. these factors influence the cost of the estate. At times the cost of the probate eats deep into the estate funds. Cost of probate is usually paid from the estate funds.
How long does it take to complete the process of probate?
Duration of probate is not certain as it varies depending on how complex the will is, if the will is contested or not, if there is a will or not, probates having no wills take longer time to execute. Probate could last for six months to a year or it could take even longer period to be completed.
Who is responsible for obtaining probate?
If there is a will and an executor was named, then the executor will be responsible for obtaining probate but if there is no will, the court will appoint an administrator who will serve the function of the executor.
How we can help!
The process of writing a will and probating an estate could be stressful, time consuming and could even be difficult especially for the uninitiated. This is where we come in; we have professional probate attorneys who are always available round the clock. You can put a call across to us today to contact us if you need to hire or consult a probate attorney.