If you recently lost a loved one and have an estate to settle, you will likely have to go through probate court to distribute the assets. You should know what probate court is and what happens there as well as how long it can take to go through probate court. It’s also important to know how to file an objection in court if you don’t agree with what’s happening and how to avoid going through the probate court system before the family member is deceased.
Definition and Role of a Probate Court?
Probate court is part of the court system that deals with estates, will, and property of a person who has died. The role of the court is to ensure the person’s will is followed and their wishes carried out. If no will exists, the probate court must follow the rules of the state as to the disposition of the estate.
The court also makes sure the debts of the deceased are paid and all assets distributed. They oversee the executor or personal representative of the estate to ensure they follow the laws and the terms of the will.
What Happens in Probate Court?
Because the court is the overseer of the will, the judge must approve all activities regarding the estate. In some states, that oversight is more direct with approval being necessary for each task. In other states, the court plays a less obvious role, only providing approval when the tasks are completed and the assets are ready for distribution.
The first thing that happens in probate court is the appointment of the executor. If there is a will, the person was most likely named. If that person can’t serve for some reason or no will exists, the court must appoint someone to this position. The court will provide letters of testament or documentation to show that the person has the authority to act on behalf of the estate.
The court will handle any objections filed against the will and review all actions taken by the executor. The executor may petition the court to allow for the sale of property to pay creditors. Once the estate has been distributed and everything has been completed, the court will close probate.
How Does Probate Court Work?
While the probate process can be quite lengthy and complicated, the steps are quite simple. The first step is when someone files a petition with the court to open probate. They must also file the will with the court.
Once probate is opened, the court will appoint the executor and provide them with the documentation to handle the estate. This is the initial hearing, which may be followed by another hearing if anyone has any objections.
The executor will take care of the tasks of notifying creditors, taking inventory of the assets, paying debts, liquidating assets as needed, paying taxes, and distributing the final assets to the heirs. During this time, the court’s job is to handle any issues that arise. If there are any objections, the court will hear the evidence on both sides and make a ruling.
Much of the time, the executor will be required to show an accounting statement of how the estate was handled. The court will approve the documentation, allowing probate to close for the estate.
These steps are the requirements for a formal probate process. For informal probate, the will still must be filed along with the petition. However, the court doesn’t have as much oversight as long as everyone is in agreement to the will.
How Long Does Probate Court Take?
It’s impossible to give a stated amount of time that probate court will take, especially with large estate or those with multiple creditors or beneficiaries. The least amount of time is a few months, but most cases will take between eight and twelve months to be completed in the court system.
In large estates or those with heirs who don’t agree with the provisions of the will or doubt its validity, it can take even longer, even several years. There have been cases that are still in the courts for two, three or four years without a resolution. This isn’t a good situation, which is why it’s a good idea to understand about the probate process and the probate court system and avoid these complications before they arise.
Do You Have to Go to Probate Court When Someone Dies?
The short answer to this question is no, but most of the time you will need to file probate with the court when someone has passed away. There are a few exceptions for estates that allow them to avoid probate court, but most will have to complete an informal process even if they don’t need to go through formal probate.
As far as the individual heirs or beneficiaries, they generally don’t need to appear in court in person. The executor will handle the details and the requirements of the court. As long as they have no objections, they won’t need to be present for the proceedings in court. The executor will disperse the estate once the creditors and taxes have been paid.
How to File an Objection in Probate Court
First, you should know that not just anyone can file an objection to a will in probate court. Generally, you must have an interest in the estate, such as an heir or creditor, to file. You also can’t file just because you don’t like the terms of the will.
The main reasons to file an objection is for fraud or forgery of a will or if the person was under undue influence to create the terms of the will. Each state has its own rules for grounds to file an objection. You will need to provide proof of the allegations. Forgery where someone else signed the will invalidates it no matter what state you are in. Fraud is another standard ground for invalidation where someone intentionally misleads the person into making certain provisions in their will.
Each state has a deadline for which someone can object to the will, which is important to know if you’re considering objecting. You must also follow specific rules for the form and substance of the objection.
You can also object to a will if you know a more recent will was created. However, you will need to provide the newest will or other evidence that one exists. Another reason to object to the will is based on the person who is being appointed as the executor or personal representative. You will need to show evidence as to why the person isn’t a good candidate, especially if the will named them for the position.
How to Avoid Probate Court
It is possible to avoid going to probate court when someone dies. One of the best ways to accomplish this goal is to put all the assets in a trust while the owner is still living. The trust is considered its own entity, which means it continues to operate even after the person has passed away.
You assign a beneficiary to the trust who will receive the assets after the owner passes away. Since everything is already assigned to someone, there is no need to go through probate.
You can also avoid putting most assets through probate court by designating your own beneficiaries. For instance, a checking account or savings account at a bank can have someone listed as payable on death. When the owner of the account dies, the money in that account would automatically go to the person listed.
Other assets work the same way. Retirement accounts have beneficiaries as well as life insurance policies. You can also include a beneficiary or person payable on death for vehicles and real estate property. This ensures that the person you choose gets the asset and isn’t left to the courts to decide. Other heirs can’t object to this choice as long as the owner of the property was of sound mind when they made the decision.
The probate court plays a pivotal role in ensuring the wishes of the deceased are followed and that all creditors and beneficiaries are paid as required by law and the terms of the will. It’s helpful for the heirs and the personal representative to understand the way the court works and how it will help them through this process for their loved one’s estate.