The Probate Process

What You Should Know About the Probate Process

When someone dies, their estate assets must be dispersed according to the instructions in the will or living trust. If the decedent didn’t leave a will or set up a living trust, then the probate court must determine who receives any asset subject to probate. This is a court supervised process that can take some time. It’s important to understand what happens and when, so you can be prepared if you are an heir, especially if your first question is “What’s probate?” Understanding how probate works helps to ensure everything is handled legally and in a timely manner to prevent delays as much as possible.

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If you’ve recently had a loved one die who has named you an heir, you may be wondering what will happen next. You may have questions about the probate process, probate law, how long it takes, if there’s a probate cost, and what you will need to do. While this is a complex process, you can get some basic ideas about what to expect and whether you can empty the house before probate, or if you must wait. 

What is Probate

Probate is the legal process by which an estate of someone who has died is distributed to the heirs. This process also includes paying any debts the deceased person owed and settling all assets. A common question is ‘when is probate not necessary‘, but each state has laws on probate, and while they are very similar, some differences do exist. For this reason, it’s always necessary to know the laws for a specific state. 

There are two broad categories of probate: formal and informal. It may also be called probate for large estates and probate for small estates. Within these two categories may be more than one option based on specific criteria. This is often where the differences based on state are seen. For instance, New York considers an estate small if it is valued at less than $30,000. In California, that amount is $166,250 or less. 

What is the Purpose of Probate Court?

The role of the court is to ensure that the wishes of the deceased are carried out and that all obligations have been taken care of. The court oversees the probate process, interprets any documents that may be unclear and answers any questions that may arise. The court acts in a supervisory role, which may vary by state. Some state laws require the court to have more oversight, which may mean the executor gets permission or approval before taking action. 

If there are any disputes about the will or someone contests it, the court must resolve the disputes. It looks at the evidence presented in probate records in light of what is in the will and makes a ruling. Once all the tasks for probate have been completed, the court also closes probate. 

How Does the Probate Process Start?

The probate process begins when someone files a petition with the court to open probate for an estate after the owner has died. Along with the petition, the person will need to include a copy of the certificate of death and the original will. Once the court reviews this information, probate has officially been opened. 

How Long Does the Probate Process Take?

The timeline for how long probate takes can vary widely. It can range from just a few months to well over a year. In some cases, probate can linger on for several years. While that extreme is an exception to the rule, it’s important to understand that probate isn’t a quick process in many cases.

There are several factors which determine the length of the probate process. The size of the estate and how long it takes to catalogue everything is one major factor. It can take some time to hunt down all the assets owned by the deceased person. Another factor is how long creditors have to submit a claim against the estate for money owed to them. This time varies by state. It can be three months, four months or even longer. 

If the executor objects to any claims by creditors or if anyone else contests the will, the court will need to hold a hearing to resolve the dispute. This process takes some time, and it will increase the time for the entire probate process. 

Another part of the process that can take time is if assets need to be sold to pay creditors or for distributing the estate to heirs. A car, artwork or jewelry may only take a few days or weeks to sell, but it can take much longer to sell a house, land or a business. The probate sale can add months to probate. 

Chronological Steps of the Probate Process

File Petition
for Probate
Hearing on
Letters of
Issue Bond
Notice to
Estate Taxes
Creditor Claims
File Petition
for Final Distribution
Hearing on

To give you an idea of what to expect with probate, here is a breakdown of the basic steps in the process from the beginning. Of course, the size of the estate and other details can make any steps more complicated. 

1. File the Petition

The first step with any estate is to file a petition with the court. This includes a copy of the death certificate and the will. The court will review the petition and other documents to open the probate. At this point, it will determine who should be appointed executor. 

If the will names someone as executor, also known as administrator or personal representative, the court will most likely approve that person. If no one is named or if the person named is unable or unwilling to act as executor, the court must appoint someone else. While it may be one of the beneficiaries, an attorney or accountant for the estate may also be chosen if none of the heirs want the task. 

2. Issue Bond

The executor will need to get a probate bond to protect them from any claims made against them for fraudulent activity. This bond is a surety bond to cover the work they do on behalf of the estate. If they should make a mistake that costs money to the estate or heirs, the bond would cover them. 

When the person is approved or chosen by the court, they are given documents called Letters of Administration or Letters Testamentary. These documents show they are allowed to act as managers of the estate. This gives them the authority to pay bills, sell assets and do other tasks as executor or administrator. 

3. Notice to Creditors

Once a person has been named as executor or administrator, one of their first jobs is to give notice to creditors. The exact process will vary by state. Sometimes, the person simply publishes a notice in the local newspaper. Other times, they are also required to send letters to the known creditors. The creditors are given a certain timeframe to submit claims to be paid. Generally, they have three or four months to do so, but this time can vary by state. 

4. Take Inventory

While the executor is waiting to hear from the creditors, they will be taking inventory of all the assets owned by the deceased. In a small estate, this could take only a couple of days. In a large estate, it could last for several months. 

The executor must track down all assets and get proof of ownership. They must secure the assets to ensure none are lost, stolen or sold during this time. They may need to sell some of the assets to pay the creditors. If the deceased person owned a business, it may need to be closed to allow for liquidation. This process can take quite a bit of time. 

5. Pay Estate Taxes

The next task is to pay the estate taxes. The executor will need to file personal or business tax returns if necessary and pay any amounts owed. This task must be completed before the estate can be distributed. They will need to wait for the returns to be approved to ensure no changes are made. 

6. Final Petition for Final Distribution

Once all the other tasks are completed, the executor is responsible for distributing the rest of the estate to the heirs. This can be as simple as issuing funds for each person. It can be more complicated if the will stipulated for the transfer of nonliquid assets. For instance, the deceased person may have given their home to one of their children. The title must be transferred to the new owner, which is the job of the executor to oversee. 

How Long Do You Have to File Probate After Death?

There are a lot of deadlines to deal with when it comes to probate. The first concern for many is how long they have after someone dies to file probate. The answer varies by state and can be a little complicated. The will must be filed with the court in a timely manner even if there’s no petition to file probate at that time. In Florida, the will must be placed with the court within ten days from the notice of death. In California, you are given 30 days to file the will.

This is a good time to file for probate as well, but you generally have more time for the petition than you do the will. Each state and even the counties within the state can set their own rules, but the general guideline is to file within four years of the person’s death. 

What Happens After Probate is Closed?

Once probate is closed, the executor’s job is done. Any involved parties do have up to six months to object to the proceedings. They can sue the executor or file an objection for the actions of the executor or administrator. If the estate wasn’t closed correctly, this timeline may extend to three years. 

The most probably reason that the parties would object is if they claimed the executor made an illegal or even just an unfair decision during the probate process. Another issue is if assets are discovered after probate has been closed. A petition must be filed with the court for these assets to be handled according to the will. 

Before Taking on Responsibility as an Executor

Before you agree to take on the responsibility of being an executor for an estate, you need to think about what it will mean. If the estate is large and complicated with multiple heirs, you may have a great deal of work to do. Plan to spend hours upon hours working on the tasks of this estate. It can be like having another job. If you already work full-time or take care of kids, you may not have the time or energy to devote to this task. 

Another issue to consider is how you get along with the heirs. Many times, the person chosen is an heir, and you have to think about how the others will see your actions. What you do must be above reproach. If you don’t get along with the other heirs, probating the estate can compound the problem. 

Before you decide to accept the role of administrator or executor for an estate, make sure you understand what is expected of you. You will have deadlines to meet, tasks to perform and laws to follow. Working with a probate attorney can make the job easier, but in the end the responsibility is yours.

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