Common Questions About Probate

What is probate?

Probate is the process by which an estate left by a loved one who dies or "decedent" is administered, process and ultimately transferred to the heirs and beneficiaries of the estate. The estate is first inventoried, then any debts against the estate are paid, any moneys due to the estate are collected, and then the remaining assets are distributed to the beneficiaries and heirs.

What property is excluded from the probate process?

Any property that is held by the decedent and someone else jointly or as "joint tenants with right of survivorship," any property in a trust account that are "payable on death (POD) or "transfer on death TOD)" to a named person or persons, and any insurance or retirement benefits that have a named beneficiary will not go through the probate process.

Why does the property have to go through probate?

The probate process exists to protect all parties involved. Probate endows the executor or personal representative for the estate to handle the assets legally. Then, probate allows creditors the opportunity to make claims against and collect debts from the estate before the property ownership is transferred to the heirs and beneficiaries.

What are the normal steps to the probate process?

The probate court will appoint an executor in the case of a will, or a personal representative or administrator in the case of no will involved. The executor or administrator will accomplish the following tasks: care for the property, receive payments due to the estate, pay all legitimate debts against the estate, gather name, addresses, and other pertinent information of interested parties, pay all outstanding taxes against the property, and finally, distribute the remaining assets to the heirs and beneficiaries.

What are the costs of probate?

Each type of document that is filed in probate has a separate cost associated with it, typically around $200 per document. There can be attorneys fees charged for handling each part of the process, but these fees mostly must be approved by the probate court. The executor or administrator can also be paid a percentage of the estate for handling the case.

How long can probate take?

The length of probate cases vary from case to case. If the estate is relatively small, does not require filing state income tax, and has no complex creditor issues, the case can be settled in as little as six months. However, several factors can stretch out the process. If the estate must go through a tax audit, or if someone contests the will for any reason, the process can be delayed up to several years. Most probate cases are resolved anywhere from nine months to one year.

What about a will?

It is always a good idea to have a will properly drawn up. A will make sure that your assets and property end up with the person or persons you intend. You can also name your own executor and settle any matters of dependent children in the will. It is always a good idea to review your will with an attorney to make sure that it meets your current needs. If you do not make out a will, your property will be distributed according to the inheritance laws of the state where you live. Will or not, your property will go through the probate process; a will just gives you more control in the outcome.