Probate is the judicial process by which a decedent’s estate is valued, beneficiaries are determined, an executor in charge of estate distribution is declared, and the estate is legally transferred to the determined beneficiaries.
An estate can be brought to the Probate Court in 4 ways.
• The decedent has a will distributing property to beneficiaries without the use of a valid and properly funded trust.
• The decedent passed intestate (without a will).
• A Trust is being challenged as to validity, capacity, fraud, or undue influence.
• A Trust is unfunded and property remains outside of the Trust’s intended protection from the probate process.
The Probate Process can be long and arduous, typically taking anywhere from 10 months to 18 months for an uncontested Probate Proceeding. The Probate Court certifies the executor designated in the decedent’s estate plan, or appoints another third-party administrator under certain circumstances. A valuation is conducted of the decedent’s entire estate. The beneficiaries are both determined and contacted. Creditors are notified of their last opportunity to seek unpaid bills. The property is distributed to the beneficiaries. Lastly, the Executor is discharged from his/her duties. After an asset-holder dies, the court appoints either an executor named in the will or an administrator (if there is no will) to administer the process of probate. This involves collecting the assets of a deceased person to pay any liabilities remaining on the person’s estate, and to distribute the assets of the estate to beneficiaries.
How Probate Works
Probate is the analysis and transfer administration of estate assets previously owned by a deceased person. When a property owner dies, his assets are commonly reviewed by a probate court. The probate court provides the final ruling on division and distribution of assets to beneficiaries. A probate proceeding will typically begin by analyzing whether or not the deceased person has provided a legalized will. In many cases, the deceased person has established documentation, which contains instructions on how his or her assets should be distributed after death. However, in some cases, the deceased does not leave a will.
Probate with a Will
A deceased person who has provided a will is known as a testator. When a testator dies, the executor of the will is responsible for initiating the probate process. Typically, the executor is a financial advisor. The will can also provide details on a specified executor. The executor is responsible for filing the will with the probate court. States can have different rules for the timeframe in which a will must be filed after death. Filing the will initiates the probate process. The probate process is a court-supervised proceeding in which the authenticity of the will left behind is proven to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the will, which gives the executor the legal power to act on behalf of the deceased.
The Executor
A will typically designates a legal representative or executor approved by the court. This person is responsible for locating and overseeing all the assets of the deceased. The executor has to estimate the value of the estate by using either the date of death value or the alternate valuation date, as specified by the Internal Revenue Code (IRC). Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. Probate for real estate may need to be extended to any counties in which the real estate is located. The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time (approximately one year) from the date of death to make any claims against the estate for money owed to them. Claims that are rejected by the executor can be taken to court where a probate judge will have the final say on whether or not the claim is justified. The executor is also responsible for filing the final, personal income tax returns on behalf of the deceased. Any estate taxes that are pending can also come due within one year from the date of death. After the inventory of the estate has been taken, the value of assets calculated, and debts paid off, the executor will then seek authorization from the court to distribute whatever is left of the estate to the beneficiaries. If a deceased person’s estate is insolvent, an administrator will likely choose not to initiate probate. In general, individual states may have their own rulings on a statute of limitations for the processing of a will through probate. States can also have thresholds for probate filings.
Probate Without a Will
When a person dies without a will, he is said to have died intestate. An intestate estate is also one where the will presented to the court has been deemed to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to state laws. If a deceased person has no assets, probate may not be necessary. In general, a probate court proceeding usually begins with the appointment of an administrator to oversee the estate of the deceased. The administrator functions as an executor, receiving all legal claims against the estate and paying off the outstanding debts. The administrator is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. The probate court will assess what assets need to be distributed among the legal heirs and how to distribute them. The probate laws in most states divide property among the surviving spouse and children of the deceased. Community property laws can recognize both spouses as joint property owners in an intestate proceeding. In effect, the distribution hierarchy typically starts with the surviving spouse. If unmarried or widowed at the time of death, assets are usually divided among any surviving children. After a spouse and children are considered, other relatives may also be deemed appropriate for distribution. Close friends of the deceased will not normally be added to the list of beneficiaries under a state’s probate laws for intestate estates. However, If the deceased had a joint account with right of survivorship or owned property jointly with another, the joint asset would automatically be owned by the surviving partner. It is important to know whether a probate is required following the death of an individual. The probate process can take a long time to finalize. The more complex or contested the estate is, the more time it will take to settle and distribute the assets. The longer the duration, the higher the cost. Probating an estate without a will is typically costlier than probating one with a valid will. However, the time and cost required of each are still high. Also, since the proceedings of a probate court are publicly recorded, avoiding probate would ensure that all settlements are done privately. Different states have different laws concerning probate and whether probate is required after the death of a testator. Some states have a specified estate value which requires probate. Some assets can bypass probate because beneficiaries have been initiated through contractual terms. Pension plans, life insurance proceeds, 401k plans, medical savings accounts, and individual retirement accounts (IRA) that have designated beneficiaries will not need to be probated. Likewise, assets jointly owned with a right of survivorship can bypass the probate process.
Important Reasons to Avoid Probate
Anyone with a basic understanding of estate planning knows that one of the primary benefits of having a living trust is to avoid probate. Nevertheless, unless you are an attorney or have been personally involved in a probate proceeding in the past, few people have an understanding of what probate really is and why it is not recommended for most estates. Probate is a court supervised process for administering and (hopefully) distributing a person’s estate after their death. When a person dies leaving property (especially real estate) in their name, the only way to transfer ownership from the deceased owner’s name to the name of their heirs is for a court to order the transfer through the probate process. In other words, since a deceased owner of property is no longer around to execute deeds, only a court can effectuate the transfer of real property after the owner dies, and probate is the legal process by which this would occur. Many people have the misconception that having a will alone avoids the probate process. A will merely informs the world where you want your property to go, but probate is still needed to carry out the wishes expressed in the will (since even with a will, property stays in the name of decedent). Only a trust can avoid probate because once you have a trust, all of your assets are then transferred to the trust during your lifetime thereby avoiding the need for a court to do so. For some estates, probate might be a good alternative, but consider these reasons why you would want to avoid having your estate pass through probate:
• Probate is a public proceeding: As with any court proceeding, the court hearings and documents in probate are completely open to the public. In fact, probate courts typically require filing an inventory and accounting of the entire estate with the court. Anyone can simply visit the probate court and view or copy probate records, and some courts even make this information available online. If you have any interest in keeping your finances, property or family members’ secret upon your death, you want to avoid the probate process.
• The personal representative has to formally notify all your creditors of your death. One of the primary purposes of probate is to afford creditors the opportunity to have their debts with the decedent settled through the probate process. In fact, one of the first steps in the probate process is to specifically notify all known or reasonably ascertainable creditors that decedent has died, and therefore, if they want anything, they need to act now. Once a creditor has been notified, they merely need to file a claim with the probate court within the time allowed and will be entitled to payment from the probate estate (assuming it is not contested and there are assets are available to pay).
• Probate is a court supervised process. In many cases in probate, court approval is required at every step in the process, from appointing the initial personal representative for the estate, proving the will (if any), confirming dispositions of property, approving the inventory and accounting of the estate, settling disputes between creditors or beneficiaries of the estate, and final distributions of the estate. The process is fraught with rules and procedures that must be followed in order to obtain court approval. For example, selling real estate through the probate process may entail securing formal appraisals, offering the property for sale through a court bidding process, and ultimately obtaining court approval for the final sale. By contrast, since a trust is usually administered without any involvement of a court, the makers of the trust can be very flexible in how their property will be distributed without the need for a lot of formalities that a court would require.
• Probate involves time and delay in administering and distributing the estate. Given all the court procedures and requirements of administering a probate estate, even the most simple and uncontested probate proceedings can take many months to a year. If there are claims, disputes, or other complications in the proceedings, the process can take much longer. As an example, it was reported that probate estate for country singer John Denver lasted over six (6) years, meaning that his heirs had to experience years of delay before they were able to receive what was their rightful inheritance. As courts continue to report reduced funding and large caseloads, increasing delays will likely continue to be part of the probate process.
• Probate usually involves significant attorney’s fees. Although parties certainly have the option to represent themselves in probate, due to all the procedural requirements in probate, which is usually quite different from the procedures in a typical lawsuit, attorneys are usually recommended in all but the most simple of probate estates. Attorney’s fees are usually paid from the estate based on a percentage of the value of the estate.
How To Apply For Probate
Once you’ve worked out that you need probate and built up a good picture of the assets and debts within the estate, you should start your application as soon as possible. The government can take a little while to approve applications, so the sooner yours is submitted, the better.
Getting the grant
The cheapest option is simply to get the grant of probate or letters of administration. For this, Fare will quote a fixed-price of just £595 – or £1,045 for more complex cases. This is a great choice if the estate is fairly straightforward, you have plenty of free time and you’re good with numbers. After a brief consultation over the phone, we’ll set up a follow-up call to record all the necessary information about the estate. Once we have everything we need, our legal team will complete the application and tax forms, and then we’ll send this to you for your approval before submitting it to the probate registry. Once we receive the grant, we’ll send it out in the post, then you’re free to sort out the estate yourself – including selling property, paying off debts, closing bank accounts and distributing assets.
Full Estate Administration
If you’re short on time, want more support or feel that the estate is too complex to take on yourself; we also offer a full estate administration service. This reduces the burden on you and your family and gives you the assurance that the estate is being dealt with correctly.
Here’s a brief breakdown of what’s included with full estate administration:
• Contacting third parties about the assets and debts in the estate
• Completing the application for probate
• Collecting or transferring assets
• Paying off debts to include taxes
• Contacting beneficiaries and ensuring that they receive their inheritance
Legal Assistance
Individuals who are considering drafting a trust or a will may wish to consult with an estate planning lawyer. He or she can explain the advantages of using a trust as well as a will. He or she can make recommendations based on the specific considerations of the client. He or she may even recommend using both documents, such as by using a pour-over will that places any property owned at the time of the testator’s death into the trust.
