When a person dies, his or her estate must go through probate. Probate is a legal process overseen by a probate court that handles the debts and assets of the deceased for estates valued at more than $150,000.00. It includes:
- Validation of an existing will.
- Identifying and proof of property.
- Determining the value of property via appraisal
- Payment of debts and taxes owed
- Distribution of property per the will.
A will has no legal effect until it is goes through the probate process which is governed by state law. If no will exists, the court will appoint an administrator of the decedent’s estate. With or without a will, you are best served by hiring an attorney who can assist you through the probate process and its required paperwork and court appearances. All lawyer and court fees are paid by the inheritance left in the decedent’s will.
The Probate Process includes four primary steps:
- Filing a Petition
This is where it all begins: A petition is filed with the court to admit the will into the probate system where upon an executor will be appointed or if there is no will, an administrator of the estate will be appointed. This is a necessary step to provide proof to all heirs that the will is legitimate. It is at this time that heirs are allowed to object to the petition if they question the will.
- The Appraisal Process – Determining the Assets
The appointed executor or administrator provides notice of the death to all creditors of the estate, allowing creditors to claim assets in a provided window of time. At this point an inventory and appraisal of all of the decedent’s property takes place. The court will appoint a “probate referee” to appraise estate property.
- Payment of Debts by the Estate
The appointed executor or administrator must determine which (if any) of the creditor’s claims are legitimate and accurate, and use funds from the estate to pay any final bills. And if necessary and the court allows, the representative will have authority to liquidate assets to satisfy payment of the decedent’s bills as well as the costs, fees and expenses of administration of the estate.
- Transference of Property and Assets
After all of the final bills have been addressed and satisfied, the appointed executor or administrator petitions the court for the authority to transfer the assets to the beneficiaries named in the will. If no will exists, state law will dictate the transfer of assets. It is also during this time that any trusts are set up for minors, new deeds for real property are drawn, assets are prepared for transfer. The time frame for getting to this final step of the process, from the beginning of the process can be anywhere from 18 months and 2 years in our local courts.
Properly drafted and regularly updated wills make the probate process much easier for all final requests to be fulfilled.
There are two ways to avoid the probate process. The first is to have a trust (see our page about trusts). The second is “only” applicable if your estate is valued at under $150,000. When your estate is less than $150.000 in value you may present a small estate affidavit to the person or institution having custody of the property. The law requires a minimum 40 day wait from the time of death to the release of all property for the use of a small estate affidavit.