• What does "probate" mean?
• How long does the probate process normally take?
• What costs are involved to initiate and complete the probate process?
• Why and when is probate a necessary legal process?
• Can we take care of probate without a "probate attorney" being involved?
• During probate, how do we deal with debts left behind by the deceased?
What does "probate" mean?
Probate is the legal process by which property - owned by a person who is deceased - has been passed to his or her heirs after the death. In other words, probate is simply passing title or determining "who gets what" when someone passes away, either by looking at the will, or if none exist, then under the laws of intestacy, or laws that determine the hierarchy of heirs
The term "probate" refers to a "proving" of the existence of a valid Will, or determining and "proving" who one's legal heirs are if there is no Will (In Testate). Probate is typically overseen by an executor, if there is a Will, or by the court and a court appointed "personal representative" if a Will does not exist. An executor is the person assigned to administer the estate.
How long does the probate process normally take?
Probate frequently takes at least 7 to 9 months to complete the process, often a year to 15, 18 months or even longer. If the Will is being contested, probate can drag on for even longer - sometimes taking several years. Some probate scenarios take 2 years or more. Many issues affect the probate time frame - for example the size of the estate, locating beneficiaries listed in the Will, validating the Will, and appointing an executor to the estate if there is no Will to refer to.
What costs are involved to initiate and complete the probate process?
Probate expenses usually run anywhere from 3% to 7% of the total value of the estate. This includes court costs, executor's fees and possible expenses, a surety bond, appraisal fees, plus legal and accounting fees. If there is a "Will contest" expense can run even higher.
Why and when is probate a necessary legal process?
Probate is used to legally transfer title of the deceased (decedent's) property to his or her heirs and/or beneficiaries. If there is no property to transfer, there is typically no need to go through the process of probate. Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of their property. Probate also provides a way to pay outstanding debts and/or taxes connected to the estate, for setting a deadline for creditors to file claims (which stops unpaid creditors from pursuing heirs or beneficiaries) and for the distribution of the remainder of the estate's property to the decedent's legal heirs.
During probate certain members of an estate might insist on contesting the Will. This is allowed by the courts. Probate is also necessary to validate the Will and ensure that the Will was actually written by the decedent and that the decedent was 'of sound mind' when he or she created the Will. Even though the decedent may have made it clear in the Will who the beneficiaries are, certain relatives may want to question the validity of the Will, and have the legal right to do so. This is an issue that would come under the probate process. If the decedent left a great deal of cash, bonds, stock and/or real estate in the estate, there is always the possibility that distant relatives may enter into the picture and claim a piece of the estate, whether the Will names them as heirs or not.
During the probate process, the value of the estate and assets of the decedent Will be confirmed as well as any liabilities the decedent may have: unpaid taxes, outstanding loans, mortgages and other debts. Probate allows legitimate creditors to file a claim to regain money owed to them. Probate guarantees that any assets, cash, bond, stocks, jewelry, valuables, real property, land, or business interests left to beneficiaries in the Will are legally reassigned to the beneficiaries during probate.
In short, probate guarantees that the estate is distributed fairly and properly, as dictated by the decedent's Will.
Can we take care of probate without an actual "probate attorney" being involved?
A lawyer generally keeps the proceedings formal and professional. There are no laws that insist you use a lawyer, or probate attorney, however probate is a legal process. One mistake or missed deadline could cause a great many problems for everyone involved with the estate. The probate process has to remain error-free. An experienced probate lawyer can guide you through the probate process and make sure there are no unnecessary delays. A probate attorney specializes in the area of law related to the legal process that takes place when a person passes away. The probate attorney will file the required paperwork and appear in court on behalf of the executor of the person's estate. The probate attorney will also usually handle probate specific details such as proving that a deceased person's will is valid, having the estate appraised, and paying outstanding debts, and helping in the details of inherited property.
You normally do not need a probate attorney if your estate is valued at lass than $100,000. In this case, there are some simple forms that allow your survivors to easily transfer your property without the need for probate
During probate, how do we deal with debts left behind by the deceased?
If the deceased passes away with unresolved debts, probate typically gives creditors six months from notification of probate to file their claim. Once these claims have been filed, the remainder of assets can be distributed accordingly. Probate allows for the distribution of the decedent's assets in accordance with the Will (if there is a Will) and, similarly, deals with debts and taxes that the deceased may have owed when he or she passed away.
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