THIS TO KNOW ABOUT PROBATE

Probate is the legal process of settling a deceased person’s estate, ensuring debts are paid, and distributing assets to heirs or beneficiaries. This process is overseen by the probate court and involves verifying the validity of a will (if one exists) and appointing an estate representative to manage the estate until all matters are resolved.

The probate process varies by state, with some offering a simplified version for smaller estates. However, the general process follows a structured set of steps to ensure all legal and financial obligations are met before distributing assets. Here’s an overview of how probate typically unfolds:

1. 1. Submitting the Will – If a valid will exists, it is filed with the probate court.
   2. Appointment of an Estate Representative – The court issues a Notice of Petition for Probate, and an executor (or administrator, if no will exists) is appointed to oversee the estate.
   3. Creditor Notification & Debt Claims – Creditors are given a specific period to submit claims against the estate.
   4. Asset Identification & Management – The executor gathers, safeguards, and maintains all estate assets.
   5. Settling Debts & Expenses – If necessary, assets may be liquidated to pay outstanding debts.
   6. Tax Filings – A final tax return for the estate is completed.
   7. Final Accounting & Distribution – A detailed petition is submitted to the court outlining expenses, asset distribution, and debt payments. Upon approval, the remaining assets are transferred to beneficiaries or heirs.

In cases where no will is present, the probate process differs slightly. The court appoints an administrator—often a surviving spouse, domestic partner, or adult child—who follows the same steps but distributes assets according to the state’s intestate succession laws.

On average, probate takes anywhere from 9 to 18 months. However, some states, such as Texas and California, offer a streamlined process for small estates, which can be completed within weeks.

In more complex cases—such as when disputes arise or extensive legal matters need resolution—probate can extend to several years. Factors such as contested wills, creditor disputes, or difficulties locating heirs can significantly impact the timeline.

Probate doesn’t begin automatically when someone passes away. When a will is identified, the executor named in the will can begin the probate process by filing a petition with the court to be officially acknowledged as the legal executor. The will and death certificate must also be filed.

If there is no will, an administration process is started instead. A petition must still be filed with the probate court to appoint an administrator for the estate.

Once this petition is filed, the court schedules a hearing to approve the appointed executive/administrator or listen to objections, if any. Notice of the hearing must be given to all beneficiaries and heirs of the decedent. Once an executive/administrator is approved, the probate case is opened with the court and the executive/administrator has the legal authority to act on behalf of the estate.

While probate is often seen as a lengthy and costly process, it serves a crucial purpose in protecting an estate and ensuring assets are distributed correctly. Probate ensures that beneficiaries receive what they are entitled to while also settling any outstanding debts and taxes. Additionally, it validates the will to confirm the decedent’s true wishes are honored.

Here are the key reasons why probate is necessary and what it accomplishes:

• Legally Transfers Ownership – Probate provides a legal process to transfer property and assets to beneficiaries or heirs, ensuring they receive clear ownership without disputes. This prevents unauthorized individuals from selling, mortgaging, or otherwise misusing the property.

• Ensures Taxes Are Paid – The process ensures that any taxes owed by the deceased or the estate are properly settled, including those triggered by asset transfers.

• Protects Beneficiaries from Future Claims – Probate sets a deadline for creditors to file claims, ensuring that debts are paid before assets are distributed, preventing future financial complications for heirs.

• Safeguards Estate Assets – By securing the estate, probate prevents assets from being lost, stolen, or wrongfully sold before they reach the rightful beneficiaries.

• Distributes Assets to the Right People – The probate process ensures that property is allocated according to the decedent’s instructions or, if no will exists, according to state laws.

Beyond these protections, probate helps prevent legal issues that may arise after someone’s passing. It confirms beneficiaries’ legal rights to inherit assets and ensures the will is legitimate, preventing potential disputes and complications.

The cost of probate depends on many factors including:

• State law
• Local practices
• Complexity of the estate
• Whether a probate attorney is involved
• Whether the will is challenged
• Executor fees, if any
• The cost of the surety bond

As a general rule, probate can cost anywhere from 2% to 7% of the estate’s total value. The cost can be even higher with complex estates and especially if the will is contested.

Many of these fees are set and can’t be changed or negotiated. Costs can depend greatly on your state. In some states like California, statutory attorney fees are set as a percentage of the estate’s gross value, not the net value which is usually lower. Only the following states have percentage fees allowed by statute: Arkansas, California, Florida, Iowa, Missouri, Montana, and Wyoming. In other states, probate attorneys may charge a flat fee or by the hour.

With many professionals you will use, you may be able to negotiate a lower rate, however, even when the statute provides for a percentage fee.

The probate process described above applies when a will is uncontested. Once the will is submitted to the court, a hearing is scheduled to allow potential heirs and beneficiaries the opportunity to raise objections. If no objections are filed, the court proceeds with appointing the personal representative. However, in some states, a will contest can still be initiated until the estate is fully settled.

There is almost never a legal requirement to use a lawyer during the probate process, although probate can be complex and very formal. Some states like Florida do require an attorney for the probate process. A missed deadline or failing to follow proper procedures can result in an executor being liable for mistakes or debts, for example. As a general rule, a probate lawyer is recommended for estates that are large or complex enough to require probate.