Probate FAQS

Probate is the legal procedure in which an estate is settled, debts are paid, and assets are distributed to beneficiaries or heirs. Probate, which is overseen by the state’s probate court, involves first proving a will is valid (if there is one) then appointing someone who will administer the estate until it’s settled.

The probate process varies by state. Some states also have a simplified probate process for small or simple estates.

As a general rule, however, probate goes through a series of steps designed to validate the will, and ensure its instructions are followed, (if there is a will), pay debts of the estate, and distribute remaining assets to the intended beneficiaries and heirs.

Probate usually goes through the following steps:

• If there is a will, it is submitted to the probate court.
• A notice of Petition for Probate is published and a personal representative is appointed. The executor/administrator then files a formal petition with the court to probate the decedent’s estate.
• Creditors may make claims against the estate for a period of time.
• The personal representative identifies and gathers assets of the estate. These assets must be safeguarded and maintained.
• When necessary, assets are liquidated to pay valid claims against the estate.
• The personal representative files a final tax return.
• A final petition is filed with the court to explain expenses, assets received and disbursed, how funds were used, and which debts were paid.
• Once the petition is approved, assets are distributed to beneficiaries and heirs and the estate is settled.

When someone dies without a will, probate is a bit different. In this case, an administrator will be appointed by the court. The administrator performs the same tasks as a personal representative or executor to identify heirs, locate and value assets and debts, and distribute assets. Most states will make a spouse or domestic partner the administrator or adult children. The estate’s assets will be distributed according to the state’s intestate succession laws.

As a general rule, the probate process takes 9 to 18 months. Some states like Texas and California have a simplified probate process for simple or small estates that don’t require much court oversight. With a simplified probate, the process can be completed in weeks.

However, probate can, on occasion, take 1-3 years or even longer. There are many factors that can affect the probate process. Probate may up to several years if any of these issues complicate probate:

• The state’s probate court process.
• Difficulty locating beneficiaries or heirs.
• The number of beneficiaries and where they live.
• A contest of the will by beneficiaries or heirs.
• Real estate and property that can’t be sold easily.
• Unsettled liens and claims against the estate.
• Failing to notify creditors during the claim period.
• A personal representative that fails to meet their legal obligations.
• The estate is large enough to owe estate taxes.

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.

Probate may seem like little more than a time-consuming and expensive endeavor, but there are many important reasons it exists. The purpose of probate is to protect the assets in an estate and ensure they go to the right beneficiaries or heirs while also ensuring creditors and taxes are paid. Probate is also designed to make sure a will is valid and the decedent’s true wishes are followed.

Here are the most important things that probate accomplishes and why it’s required:

• Legally transfers title or ownership of property and assets to beneficiaries and heirs. This ensures beneficiaries receive clear title and no one can take out a mortgage or otherwise dispose of the property.
• Ensures taxes owed by the decedent and/or the estate are paid, including taxes that become due when property in the estate is transferred.
• Offers creditors an avenue for having debts paid. Probate creates a deadline for creditors to file claims. This protects beneficiaries and heirs from future claims and ensures debts are paid before assets are distributed to heirs and beneficiaries.
• Safeguards assets to make sure they go to the beneficiaries and heirs. Otherwise, property could be easily stolen or sold.
• Ensures property and assets are distributed to the right people or organizations according to the decedent’s wishes.

Probate can also avoid a variety of issues that may come up after someone dies. For example, it ensures beneficiaries are legally able to receive assets they should receive and makes sure that the will is valid.

Note that not all assets need to go through probate and probate isn’t necessary for all estates. This legal process can be avoided in many ways with different ownership and title options, for example, to directly pass property and assets to heirs and beneficiaries without court oversight.

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.

Probate isn’t required for many estates but it depends on both the value of the estate and the type of property. If the property in the estate is designed to pass to beneficiaries outside of probate, probate isn’t necessary.

Many states also have a simplified probate process for small estates or allow probate to be skipped entirely. In California, probate is required if the value of the estate exceeds $150,000. In Texas, probate isn’t required for estates valued at $50,000 or less. Each state has its own rules on when probate can be skipped; sometimes there is a dollar cap on the estate value and rules on what type of assets affect the estate’s value for probate purposes. For example, Georgia doesn’t require full probate if there is no will, no debts are owed, and heirs agree on how property will be distributed.

For small estates, there are two probate shortcuts that may be available:

• Claiming property with an affidavit. This may be an option if the value of all assets except real estate is below a certain amount.
• Simplified court procedure. Many states have a simpler version of their probate that still involves the probate court but with less control over how the estate is settled.

The above process describing probate is the process when a will is uncontested. After the will is admitted to court, a hearing on the petition will be scheduled to give potential heirs and beneficiaries an opportunity to object. If no objections are received, the court appoints the personal representative. Depending on the state, a contest can still be filed until the estate is settled.

Probate is handled by the probate court in the county and state in which the decedent lived as their primary residence at the time of death. Note that this refers to the decedent’s state of primary residence, not where they may have been living or vacationing when they passed away. Each state has its own name for its probate court. In many states, it’s simply called probate court but it may be called Surrogate’s Court (New York) or Superior Court, Probate Division (California).

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.

When someone dies with a will, the personal representative or executor they name will be responsible for handling probate under the control of the state’s probate court, in most cases.

When there is no will, the court will appoint an administrator who manages the estate and probate based on the state’s probate laws.

In most states, the probate court maintains a great deal of oversight over the executor or administrator’s actions and requires permission to do certain activities like selling property.

Serving as a personal representative is a major responsibility and requires a great deal of time. It is possible for someone to name more than one person to act as executor of the estate. This can come with downsides as the co-executors must act together and agree on everything. This can be inconvenient and cause delays.

Each state has its own laws regarding personal representatives. In most states, it isn’t strictly necessary for the executor to live in the decedent’s state but it certainly makes the process easier and faster.

The executor has many responsibilities during probate. The personal representative’s primary duties include:

• Identifying and creating an inventory of the assets of the estate
• Determining which, if any, assets fall under probate
• Receiving any payments due to the estate
• Opening an estate checking account
• Appraising or valuing estate assets
• Determining who will receive what from the estate
• Giving notice to potential creditors
• Investigating claims against the estate
• Paying outstanding debts and claims
• Paying expenses to administer the estate
• Handling paperwork which includes notifying Social Security of the death, court documents, and discontinuing utilities
• Distributing property and assets to beneficiaries
• Filing final taxes

Being an executor is a major job. If you are named an executor, you do not have to accept. If you agree to serve as the personal representative, you can also resign later if the job is too difficult. The alternate person named in the will can be appointed by the probate court if you refuse the job or the probate court can appoint someone else.

There is no requirement that the executor be paid, but most receive compensation for the work they do. Personal expenses are always paid and the representative usually receives a fee of around 2% of the estate’s total value. In some states, this is mandated by law. The fee usually gets smaller as the estate’s value grows.

Any funds paid to the executor must be approved by the probate court. In some circumstances, additional fees can be awarded.

One of the reasons many people refuse to be an executor is the legal liability they face. An administrator or executor who does not perform their duties can face personal liability for any damages they cause.

There are many circumstances in which an executor can be liable, such as selling assets without authority, mismanaging assets, failing to collect money due the estate, overpaying creditors, failing to file taxes on time, or distributing assets to the wrong beneficiaries.

Any of these errors (and others) can cause the personal representative to face out-of-pocket costs.

As a general rule, anyone can be an executor if they are over 18. Some states bar felons from serving as executors. There may also be limits on out-of-state personal representatives who may need to be a primary beneficiary or obtain a bond.

If the court needs to appoint a personal representative or an administrator, they typically choose from this list in the following order of priority:

• The person named as the personal representative in the will
• A surviving spouse who is a beneficiary
• Other beneficiaries
• Surviving spouse who is not a beneficiary
• Other heirs
• Someone chosen by a creditor and approved by a probate judge

In many cases, a will does contain provisions for minor children. However, a court can overrule these provisions with a specific reason or a justifiable challenge of guardianship from another interested party or family member. The judge may also find the designated guardian is incompetent or otherwise inappropriate due to character issues. A judge will determine final guardianship, even though the decedent’s wishes are given first consideration.

Vehicula ipsum a arcu cursus. Mi bibendum neque egestas congue quisque egestas diam. Posuere sollicitudin aliquam ultrices sagittis orci. Ut consequat semper viverra nam libero justo laoreet sit. Scelerisque felis imperdiet proin fermentum. Neque vitae tempus quam pellentesque nec. Purus non enim praesent elementum facilisis leo vel

Joint tenancy with right of survivorship is a legal ownership option that is often used to pass ownership of a home without a will. Just note that joint tenancy can’t replace a will; it will only apply to real property, not other assets. It simply avoids probate for real estate. With this ownership option, the surviving tenant or owner — usually a surviving spouse — becomes the sole owner of the property regardless of what is in a will and outside the probate process. With this type of ownership, the property is not part of the decedent’s estate and not subject to the probate process.

Yes. The court won’t follow instructions that are deemed inappropriate. A judge can void a part or all of a will that goes against the law or is otherwise considered inappropriate. A will cannot, for example, terminate someone else’s legal rights or claims.

Beneficiary: Someone who inherits something from an estate with a will. A beneficiary is named in the will.

Codicil: A supplement to a will such as a document or rider that modifies or supersedes an existing provision of the will or creates a new provision.

Conservator: Someone appointed to manage the affairs of someone who is incompetent or unable to make decisions for themself.

Heir: Someone who inherits property when someone dies. An heir is someone who is not named as a beneficiary in the will but is a family member of the deceased by marriage or blood. This includes a spouse, child, parent, or, in some cases, more extended family.

Intestate: Someone who dies without a legal will in places dies intestate. In this case, distribution of the estate’s assets is the responsibility of the probate court and completed according to state law.

Joint Tenancy With Rights of Survivorship: A type of joint property ownership that grants co-owners the right to a share of the home upon the death of a joint tenant. The interest of the deceased co-owner is automatically transferred to surviving co-owners. With regular joint tenancy ownership without right of survivorship, tenants in common have no right of survivorship unless the deceased co-owner specifically states that his or her interest in the property should be divided among surviving co-owners in a will.

Personal Representative (Executor or Executrix): A personal representative, also known as an executor or executrix is someone designated by a will to administer an estate and handle distribution of the estate’s assets to beneficiaries.

Probate: A court process in which a will is proved valid and a decedent’s estate is settled.

Probate Court: The state court under the judicial system that handles matters related to conservatorships, wills, and estates.

Tenancy in Common: A type of shared tenancy in which each tenant or owner has a separate interest in the property that can be transferred.

Testate: Someone who has died and left a valid will.