If you have started any estate planning, you have probably heard of the probate process. Of course, you may have heard horror stories about the process.
Sometimes, it can take an extremely long time and cost you quite a bit of money. So, what exactly is the probate process, and how can you avoid it?
Keep reading and we will explain everything that you need to know. You cannot always avoid probate court in every situation, but there are some things that you can do to help.
What Is Probate?
Many people wonder, “What does probate mean?” Probate is the legal process you must follow to administer the estate of a deceased person.
- This process allows the probate court to validate and approve the will of the deceased person and then distribute that person’s assets according to the will.
Not everybody has a will, so what happens in that case? Every state has laws known as intestate succession laws.
- These laws describe precisely what happens to a person’s property and assets if they die without a will. The probate process is necessary in this case so that the court can ensure that the person’s property is distributed according to the laws of that state.
As with any legal process, probate can often drag on for quite some time. There is no specific timeframe for how long the process will take, and each estate is a little different.
In most states, there are minimum timeframes for notifying creditors and beneficiaries, so the process will take at least six months in most cases.
In very complex cases or estates in which someone contests the will, those might remain open for years before they are finally settled.
KEY TAKEAWAYS
- Probate is the legal process you must follow to administer the estate of a deceased person and requires the court to validate and approve the will or intestate laws.
- The probate process can take as little as a few months or as long as several years. On average, you can expect the process to take 9-12 months.
- There are several ways to avoid or minimize the impact of probate on your estate and heirs.
Probate Process Steps Explained
So, how does probate work? State law will lay out the steps needed for probate proceedings in your state, but they are generally the same in every state at a high level.
Most estates will need to go through probate after death. Here are the steps you must take as part of the probate process.
Petition The Court
First, a beneficiary or someone with an interest in the estate needs to petition the court to open it.
In most cases, this is a surviving spouse or close relative. This is usually a reasonably simple motion that can be filed along with supporting evidence.
The court will generally require the date of death and a death certificate at this step to prove the death of the person for whom you are requesting an estate be opened.
Most people choose to have an attorney help with this process, and you will be required to pay filing fees.
Prove The Will
Many people ask, “How does a will work after death?” Here is where the will comes into play. If the deceased had a last will and testament, it must be submitted to the court for validation.
This is called proving the will. You need to prove that the document being presented was, in fact, the person’s last will and that it was validly executed.
Most wills today are self-proving, although you might need to call witnesses into court for older wills that are not self-proving.
The estate would follow the intestate laws if the deceased did not have a will.
Appoint Executor Or Administrator
The next step is appointing an executor or administrator of the estate. If there is a will, then it will name the executor.
This person will administer the estate, including paying the outstanding debts and distributing the remaining assets.
The court will issue the executor legal documents called letters of testamentary or letters of administration. These documents allow the executor to transfer ownership of the estate’s property.
These documents will still be issued even in cases of intestacy. The executor has a fiduciary duty to the beneficiaries to administer the estate in accordance with the will or intestacy laws.
Notify Creditors And Beneficiaries
All potential creditors and beneficiaries of the estate must be notified that it has been opened.
Known creditors and beneficiaries must be explicitly notified, but most states require publication in a local newspaper or other periodical to notify unknown parties.
The notice must usually remain posted for a certain period before the probate procedures can proceed.
Perform Accounting Of Estate
If there is a valid will, then the will can waive this step along with the filing of a bond.
However, without a will, the executor must fully account for the person’s assets and file a bond with the probate court. This helps ensure that the executor will appropriately fulfill his or her duties.
Pay Last Expenses
The probate laws require that any outstanding estate debts be paid during this process.
The executor must obtain letters from the creditors stating that the debts have been paid in full. In some cases, an affidavit is also needed. These documents must be filed with the probate court before the probate assets can be distributed to the heirs.
The executor might also need to file an income tax return with the IRS and pay estate or death taxes. The heirs might also need to pay an inheritance tax in some states.
Distribute Assets
Now, it is time to distribute the assets to the heirs. This might include real estate, automobiles, bank accounts, retirement accounts, and other property of your loved one.
Generally, life insurance policies are not included in the estate. They pass directly to the named beneficiary outside of the probate process.
However, the estate’s personal representative will need to distribute all the other assets. When real property is involved, that can add time to the process.
Close Estate
The estate can be closed once all the debts have been paid and all assets distributed.
The executor will need to file a petition with the court verifying that those steps have taken place and that there are no outstanding items to be handled.
They can ask that the estate be closed, and the probate judge will verify this information before granting the motion and formally closing the estate.
Must read articles related to Wills & Trusts
- Overview of “What is a trust?“.
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- Discover what death tax is.
- Understand what inheritance tax is and tips to avoid it.
- Learn how life insurance works.
Probate Without A Will
The overall process followed when there is no will is essentially the same. However, there are a few minor differences.
The administrator will need to be appointed by the probate court since one will not be named in the will.
In addition, the property must be distributed according to your state’s intestacy laws. You will likely need an attorney familiar with the probate process to assist with this.
Remember that a living will is not the same as a last will. A living will is no longer valid upon your death, so you must ensure you have both documents.
How Long Does Probate Take?
The timeline for probate varies based on a few factors.
- The estate’s value can play a large role in how long it will take. Larger, more complex estates will take longer to administer than small estates. While you might be able to probate a small estate within a few months, a complex estate could take several years from start to finish.
- Another factor greatly affecting the timing of the process is whether or not there are any objections. If a family member comes forward and objects to the will, stating that they were mistakenly left out, then that will add time to the process.
The estate will not move forward until that matter is settled. So, the probate process can take anywhere from a few months to several years to administer. On average, it takes about 9 to 12 months in most cases.
TIP
Probate can be a long and costly process with limited control, you should create an estate plan that implements steps for avoiding probate.
5 Tips To Avoid The Probate Process
Since the probate process can take time and can get expensive, most people try to avoid it if at all possible. So, what can you do to avoid the probate process? Here are 5 tips for avoiding it.
The Bottom Line
Probate can be long and involved, so it is wise to avoid it when possible.
It usually takes about a year, and probate costs, even for smaller estates, typically start around $1,500.
Costs for large and complex estates can quickly go into the tens of thousands of dollars.
If you want to avoid probate, follow the tips in this article. It can save you time and money, and your heirs will get their assets more quickly.
Frequently Asked Questions
The purpose of probate is to administer the estate of a deceased person. It provides a legal method for the executor or administrator to pay the estate’s debts and distribute all the assets.
If there are any questions or challenges about who is supposed to receive specific property, then the probate court will decide.
It is good to avoid probate because you can save time and money.
You can avoid the legal fees associated with the process, and in some cases, you might even be able to avoid paying some creditors of the deceased.
The heirs will receive their property faster and likely end up with more money due to the savings.
Probate is the process through which an estate is administered.
Intestate means that someone dies without a will.
Even when someone dies intestate, you might still need to go through probate if they have assets that need to be distributed.
One of probate’s most significant benefits is that it provides a legal way to transfer property ownership from an estate.
If you go through probate, then you can be sure that any property you receive is on the up and up.
Everything was passed legally, and you can be confident that all the debts and estate taxes have been paid and no creditors will come looking for the property you may have taken.
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