What is Probate Law?

When a person dies, one of the first jobs for the remaining family is to take care of the deceased person’s belongings and other assets.

This can be challenging and time-consuming, especially with large estates. The surviving family and beneficiaries can’t take care of the estate any way they want to. They must follow the guidelines of the will or the laws of the state if there is no will. This ensures that everything is handled in a manner as desired by the deceased or fair for all parties involved.

What are Probate Laws?

Probate laws are laws that govern the probate process. They detail how the process works from beginning to end. These laws also determine how each step of the probate process is handled. The probate court oversees everything to ensure all laws are followed.

How State Laws on Probate Differ

Each state has its own laws on probate. While most of them are similar, they have some variances either about the steps in the process or in the timelines for when those steps must be completed. They cover everything from opening probate to closing it at the end. Some states set a deadline for when probate may be opened or when it must be finished while others state that it should be handled in a timely manner. One of the major differences between states is how long creditors have to file claims. Many states set the deadline at four months after notification, but others extend or shorten the time.

How Probate Begins

The first step in the probate process is to file a petition to open probate with the court. The court overseeing probate is usually the county court where the decedent lived. It may be the district court in some states. Some areas have a separate probate court that handles only matters of probate. Other states use the county or district court which handles other types of cases along with probate.

The Job of Probate Court

The main job of the probate court is to oversee the probate process for every estate. The goal is to ensure all laws are followed during the probate process and the instructions of the will are met. Some states require more oversight with the court providing approval for each step. Other states allow the executor or personal representative to act on behalf of the estate with little supervision. A second job for the probate court is to make decisions when there is a disagreement with the probate process. This may happen when someone contests the will or if they feel the executor or personal representative is failing at their job. The court must decide on claims made against the estate if the executor fails to pay the claims.

What the Probate Laws Impact

Probate laws impact the entire probate process. They detail how and when probate can be opened and list which court is to handle probate.

The state probate laws also state when estates must go through probate and when it can be avoided. All state laws on probate provide a section on small administration or informal probate with details on which estates qualify and how it is to be conducted. The exact parameters will vary by state, but the idea is the same. To avoid probate, the estate must be under a certain dollar amount, which varies by state. Some state laws allow for real estate to be included in small estate administration while other states only allow estates to avoid probate if no real estate property is included.

Handling the Estate

Another area where probate laws are important is in how the estate is to be managed and dispersed. State laws detail who can be an executor or personal representative. These laws detail the job of the executor and often include deadlines for certain steps.

When There isn’t a Will

One of the most important areas that probate laws address is what happens to an estate when there is no will. This is called intestate, which means the estate has no will or heirs. If this is the case, the estate must follow the laws of the state.

Order of Inheritance

Most state probate laws allow for the surviving spouse and children to inherit the deceased person’s estate if there is no will. However, there can be differences by state, depending on whether the spouse inherits all of the estate, half and the children receiving half, or another proportion. If there is no spouse or children, the state laws will determine who is next in line and in what order other remaining family may inherit. This situation is one of the most critical for courts to follow state laws to ensure the estate is handled correctly.

How Probate Works

To understand what the probate laws cover and how they dictate the process, it’s helpful to know how probate works. Once you know the steps in this process, you’ll recognize when you might need legal advice.

However, these assets would be part of probate if the estate is listed as the beneficiary. Assets owned jointly with right of survivorship wouldn’t need to go through the probate process. In this situation, the surviving owner would automatically gain the deceased person’s portion of ownership for the asset. To know if an asset should be included in the inventory for probate, you can ask estate attorneys for advice. They will know the laws for your state on which assets must be included and can provide legal advice.

First Step

The first step is to file a petition with the probate court to have probate opened for the estate. This generally occurs within a few weeks after the death of the deceased person. The court will appoint an executor or personal representative. Many times, this is someone who was named in the will.

The probate laws dictate who isn’t eligible and who is to act in this role.

Generally, they must live in the same state, be at least 18 years of age, and not be convicted of certain types of crimes. Once the person is appointed, the court will give them paperwork to show that they are acting on behalf of the estate.

Second Step

The newly appointed executor or personal representative will have several obligations to fulfill in doing their duties. They must notify all heirs about probate as well as any known creditors. State laws for probate govern how this is to be handled. Some laws require individual notices to be mailed to known creditors while others allow the notice to be published in a local newspaper. Probate law dictates how long creditors have to come forward and submit claims. Usually it is just a few months, after which their claims can be denied.

Third Step

As the claims come in from creditors, the executor or personal representative pays the debts. They must also file the final tax return for the estate and pay any owed taxes. During this process, the executor may need to sell some assets to have enough cash on hand to pay the bills. To do this, they must take inventory of the estate and locate all assets.

Managing the Estate

During this time, the executor will manage the estate. They may need to pay utility bills on a home or rental property. They may have to get the yard mowed or have snow shoveled. If the deceased person’s estate includes a business, the executor will oversee it until it can be closed or transferred.

Fourth Step

The next step is to distribute the assets of the estate. The executor may need to sell off assets to disperse the money equally among heirs.

They may transfer title to an asset to the heir if the will provided for one person to inherit an item. For example, one daughter may get a sports car while another daughter may get the boat. The executor must transfer title to the heirs as detailed in the will.

Fifth and Final Step

The final step in the probate process is to have probate closed. Once everything else is done, a petition to close probate should be filed with the court. If this step is missed, it can mean the executor is liable for any claims made against the estate later on.

Challenges in the Probate Process

One of the areas where probate laws are most important is when someone challenges how the probate process is being handled. Someone may challenge the validity of the will right from the beginning or present an unknown will later in the process. It is the job of the probate court to determine whether the claims made about the will are valid. The court will follow the rules set in the probate code as to how to handle any claims.

Disputes and Other Delays

Disputes may be brought up about how the executor or personal representative are conducting their duties, or for example, what can be done if an executor refuses to pay a beneficiary. This is another time when the court will rely on the laws of the state to determine whether the executor has done their job according to the codes or if they have failed. The probate laws of the state also address unusual situations to give guidance to the courts. For instance, the named executor in a will may have died or be unable to perform their duties. The state law will provide guidance on who would be next in line to take on those duties.

The Uniform Probate Code

The Uniform Probate Code was developed as a way to simplify the probate process. It wasn’t required for states to use this code, but it is more of a guideline to help them draft their own laws. A total of 18 states have adopted the code at least partially, 16 in its entirety. Many have adopted the entire UPC with minor or major revisions in certain areas. The UPC provides rules for several aspects of probate in separate articles. These sections include: