If you die with or without a will, your estate will be probated in order to transfer the legal title to your property to your will beneficiaries or your heirs. The probate process is handled by a specialized court called the probate court, which deals with the debts and assets of people who have died. The judge’s role is to make certain that the creditors are paid and that the remaining assets are distributed properly. If you have questions about probate, the professionals at Elder Care Direction are here to help.
What is probate?
Probate refers to the legal process in which a court oversees the estates of people who have died. Many states have special courts to handle the probate process, but some states may have different names for it. Someone will be appointed by the court to control the assets of the decedent and to pay all of the debts. The appointee will be responsible for distributing the property that remains to the named beneficiaries or the proper heirs.
Probate without a will
If you die without a will, your estate will still be probated. Your property will be distributed to your heirs, according to your state’s intestacy laws. The law outlines the order of succession for inheritances. The court will appoint an administrator to handle your estate if you have no will.
Probate with a will
If you die with a will, your property will be distributed to the people that you wish as called for in your will. The court will first need to determine that your will is valid. The executor that you have chosen will file the will with the probate court along with a request for the issuance of a letter of testamentary. If your will is deemed to be valid, the executor will be appointed by the court, and the letter of testamentary will be issued. Your executor will then be responsible for settling your estate, inventorying your assets, paying your creditors and distributing your assets according to your wishes.
The probate process
Probate will start when someone files a petition in the probate court. Normally, this is done by someone who is designated in your will or by a relative. The person will file your will with the court. The court will then appoint someone to serve as the estate’s executor or administrator.
The executor or administrator will be responsible for administering the estate and will have a fiduciary duty to the beneficiaries or heirs. There are many duties involved with probate administration, making it important for you to choose someone who is both willing and able to fulfill that role and its duties.
There are a number of costs that are associated with probate, including filing fees, notice fees, executor’s fees and attorney’s fees. If your estate is complicated, there might also be accountant’s fees. A probate lawyer may charge an hourly rate, a percentage of the estate’s value or a combination.
Probate can take months or years to finish. An average estate may be expected to take from six months up to two years. The longer the process takes, the more expensive it will be. If anyone contests the will, it will become more costly. If your estate is probated, it will be a part of the public record.
If your estate falls below a certain value, your state might have a simplified process for probate. You can check with the professionals at Elder Care Direction to determine whether your estate meets the qualifications for the simplified process.
Taxes and probate
The payment of some type of tax is required by many states called an estate or inheritance tax. Some states only require the tax if the estate’s value exceeds a specific amount.
Lawyers and the probate process
If your estate is fairly simple, it might be possible for your loved ones to go through the probate process without needing to get help from an attorney. However, if your estate is more complex, getting help from an experienced probate lawyer may be important. Elder Care Direction has a number of qualified lawyers with which we partner and can provide referrals to if you need an attorney.
Because probate can be an expensive, public and protracted process, many people want to avoid it all together. It may be possible to avoid probate by setting up a living trust. To learn more about the probate process and whether it might make sense to establish a trust, schedule a consultation with the professionals at Elder Care Direction today.