PROBATE DEFINITIONS AND GENERAL INFORMATION

Q: What is Probate?

When a person dies, their last will and testament (assuming they prepared on in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes in regard to their worldly possessions (including any property or properties they may have owned).  It also confirms the appointment of a person or entity the deceased person selected to administer their estate.  The term probate is also frequently used to refer to the entire process of "probating" an estate.  In this usage, it refers to the entire process that gathers all of the available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

The personal representative (also know as the executor or executrix) who is named in the will is legally in charge of this process and is responsible for handling the orderly method for administration of the estate as set forth by the probate laws and procedures of their state. The executor is typically held accountable for their actions and decisions by the heirs and other beneficiaries and in some cases may be formally supervised by a probate court. If a will does not exist or a personal representative is not designated in the will, the court will appoint one (assuming there is personal property to distribute).

The personal representative is often entitled by law to a reasonable fee or commission for their services.

Probate law generally encourages or provides for partial distributions of funds during the period of administration and assets are often distributed "in kind" rather than sold during this period. Tax laws generally look to the personal representative as being responsible for making death tax filings and other tax payments from the outstanding assets of the deceased.  Therefore, choosing an executor / executrix / personal representative is an important decision.

The basic job of administration and accounting for assets must be done whether the estate is handled by a personal representative as part of the probate process or if probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (such as revocable trusts, etc.) in states where the probate process has been seen to be too slow and overly expensive. In recent years, many states have simplified or streamlined their probate processes and in such states, there is now less reason to employ probate avoidance techniques.
 

​Q: How does the probate process work?

While the process can vary from state to state and is often subject to outside factors that can certainly change it, the list below represents a VERY simplified step-by-step description of the process:

  • An original (signed and executed) copy of the will is delivered to the local probate court or whatever court supervises probates in that locale.
  • A notice of the Petition for Probate is published in a local newspaper. This is usually a requirement prior to the formal appointment and/or certification of the personal representative (executor / executrix) who was named in the will, assuming a will exists (legally referred to as "testate"), or the court-appointed administrator if there is no will (referred to as "intestate").
  • After the certification or appointment of the personal representative has been made official, they then file their formal petition with the court to probate the estate.
  • Following that step and generally for a legally specified period of time (four months is typical) from the date of the public notification of the petition for probate, creditors against the estate are allowed to file their claims. This includes any previously unpaid debts, other liens or judgments, debts resulting from medical care, funeral expenses, outstanding taxes, and other encumbrances.
  • During this same period, the personal representative will be working to identify, gather and secure the assets of the estate in such a manner as to be able to ultimately distribute them in accordance with the will or court directives. To accomplish this, the personal representative will also need to locate and access all bank and other types of security accounts; determine any of the remaining debts owed by the decedent that require settlement; determine any real property(s) owned by the decedent and secure the titles to these and any other assets that will ultimately need to be disposed of.
  • It's also the responsibility of the personal representative to maintain these assets safely, properly and in good condition during their period of stewardship as well as collecting any income (rents, residuals, interest payments, etc.) that are due to the Estate. To do so, the representative must be aware of and maintain proper insurance coverage; protecting the assets from theft or damage, etc.
  • The personal representative may also (if permitted or desired) liquidate some of the hard assets such as cars, real estate, etc. This is often done to provide the cash required to compensate creditors.
  • When the formal claims period has expired and all assets have been collected; property that needed to be sold has been sold; and assuming no problems have arisen such as a contesting of the will by any of the heirs or other contested claims against the estate, the personal representative will usually file their final petition with the probate court to allow a complete distribution of all remaining assets to the heirs and beneficiaries. This final petition includes a detailed accounting to the court explaining all of the expenses incurred, funds and assets received and disbursed, how any assets were invested or otherwise used, and the proposed final plan for final asset distribution.
  • Assuming the court approves this petition, the personal representative then distributes the assets as instructed in the will and detailed by the approved petition, and/or as required by law or the courts if there was no will.

Q: How long does probate usually take to complete?

The duration of the probate process is subject to lots of different variables, but a general rule of thumb is approximately six months. However, you should be aware that it can and frequently does takes far longer. Some of the matters that can delay the completion of the process (among others) can include:

  • Problems in locating the heirs and beneficiaries
  • A contest of the will (disputing the validity of the document) by the heirs or beneficiaries
  • Claims or liens against the estate that remain unsettled
  • Real estate or other property that cannot be sold for some reason
  • Failure to properly notify one or more creditors during the claim period
  • Dissatisfaction regarding the actions of the personal representative by the heirs or beneficiaries


The complexity of the task and these myriad of possible delaying factors make it all the more imperative that a well-organized and meticulous personal representative be selected who can effectively manage the process and reduce the chances of complications and delays.
 

Q: Why is probate actually required?

There are many reasons for probate, but some of the most important are:

  • Transferring the legal title / ownership of the decedent's property and assets to the heirs and/or beneficiaries. generally, if there is no property to transfer, there is usually no need for probate.
  • The collection of any taxes due to various taxing authorities that may be owed by the decedent or his/her estate at the time of death or taxes that become due when a property is transferred.
  • As stated above, probate also provides a legally mandated deadline for creditors to file claims against the estate. This prevents old or unpaid creditors from future claims against the heirs or beneficiaries.
  • If the deceased owned real estate in his own name, no one could properly accept title to that property nor would a bank give a mortgage to a new buyer mortgage unless the estate went through probate and a "clear title" could be given the new buyer.
  • Generally, no one would enter into any other transactions involving the deceased's property until the will has been filed for probate and someone has been legally appointed to act for the estate.
  • Finally, it provides a legal method for the actual physical distribution of the remainder of the estate's property to the heirs and beneficiaries.


Q: How much does probate cost?

The cost of probate may be set by state law or by practice and custom in your community.

When all the costs are added up - and the costs may include appraisal costs, executor's fees, court costs, costs for a type of insurance policy known as a "surety bond", plus legal and accounting fees, probate can easily cost from 3% to 7% of the total estate value, and more. If there is a "Will contest" all bets are off.


Q: If there is a really small estate, is probate still necessary?

Possibly. In some states, there are processes often referred to as "simplified procedures" that are used for estates whose value is below certain financial thresholds. The limits can be as small as a few thousand dollars or as much as a hundred thousand dollars. It depends on the court of jurisdiction. This is certainly a matter to consult with an attorney about, but if there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable.


Q: What goes on in the probate of an uncontested will?

Typically the person named as the deceased's Personal Representative (a more formal term is "Executor" or "Executrix") goes to an attorney experienced in probate matters, who then prepares a "Petition" for the court and takes it, along with the Will, and files it with the probate court.

The lawyer for the person seeking to have the Will admitted to probate typically must notify all those who would have legally been entitled to receive property from the deceased if the deceased died without a Will, plus all those named in the Will, and give them an opportunity to file an formal objection to admitting the Will to probate.

A hearing on the probate petition is typically scheduled several weeks to months after the matter is filed. Depending on the state, and sometimes who the named beneficiaries are, how long before the death the Will was signed, whether the Will was prepared by an attorney, who supervised the "execution" of the Will, and/or whether the Will was executed with certain affidavits, it may be necessary to bring in the persons who witnessed the deceased's signature on the Will.

If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased's property is accounted for and distributed in accordance with the terms and conditions of the Will.


Q: Where is Probate handled?

The appropriate court in the State and County where the deceased permanently resided at the time of his or her death is usually the court where the probate is processed. A court that handles issues such as these can often be referred to my several different names. For example, in the state of New York, the court that handles probate is called the Surrogate's Court, while, in the state of California, it is called Superior Court, Probate Division. However, it's most common for it to be referred to simply as "probate court".
 

Q: Can I handle probate without a lawyer?

While there is usually no legal requirement to use a probate lawyer, probate is a rather formalistic procedure. One minor omission, one failure to send Great Aunt Maggie a copy of the petition, or a missed deadline, can cause everything to come to a grinding halt or expose everyone to liability.

The death of a family member or friend sometimes tends to bring out the very worst in some people. Experience shows that even in close families there is a tendency to get overly emotional about relatively trivial matters at the time of a loved one's death, such as who gets the iron frying pan and who gets the kettle. Such minor matters or any delays or inconveniences can be upsetting, pose issues of fairness, and create unfounded suspicion among family members. Thus, it generally is a very good idea to "let a lawyer do it".