Probate is the process that transfers legal title of property from the estate of the person who has died (the “decedent”) to their proper beneficiaries.
The term “probate” refers to a “proving” of the existence of a valid Will, or determining and “proving” who one’s legal heirs are if there is no Will. Since the deceased can’t take it with them, probate is the process used to determine who gets their property.
Property left through a will usually must spend several months or a year tied up in probate court before it can be distributed to the people who inherit it.
Probate is not cheap or quick. Because probate requires a hearing in over-burdened courts, the process can tie up property for a year or more. In addition, probate may be expensive. Estate attorneys, who sometimes charge a flat percentage or a high hourly rate, usually handle probate. Their fees and court costs may cost 5% of the estate’s value. A will is a very personal document, and may reveal private family and financial issues and concerns. But once it is entered into the court record, it becomes public, and can be inspected by anyone.
Probate is a legal process where your named executor goes before a court and does several things:
Identifies and catalogs all property owned by the deceased.
Appraises the property, and pays all debts and taxes.
Proves that the will is valid and legal, and
Distributes the property to the heirs as the will instructs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property.
Probate usually works like this: After your death, the person you named in your will as executor — or, if you die without a will, the person appointed by a judge — files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Then, relatives and creditors are officially notified of your death.
The primary function of probate is transferring title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
Another function of probate is to provide for the collection of any taxes due by reason of the deceased’s death or on the transfer of their property.
The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the Will, if there is one, and under state law.
If there is a Will contest, or anyone objects to any actions of the Personal Representative, the process can take a long time. Some matters have taken decades to resolve.
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 a 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.
In most circumstances, the executor named in the will takes this job. If there isn’t any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process — most often the closest capable relative, or the person who inherits the bulk of the deceased person’s assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can’t easily be paid from the property you leave.
Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health and your wealth. If you’re young and in good health, a simple will may be all you need — adopting a complex probate avoidance plan now may mean you’ll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate. Your property may even fall under your state’s probate exemption; most states allow a certain amount of property to pass free of probate, or through a simplified probate procedure.
But if you’re older (say, over 50), in ill health or own a significant amount of property, you’ll probably want to do some planning to avoid probate.