Have you currently been notified about your deceased loved one's estate going through a probate process? Are you the listed executor of the estate, and you are in over your head? Losing a loved one is not easy, and deciding who gets what in the estate can complicate everything. Emotions can arise when figuring out what was left behind and who is to make the final decisions.
If this sounds like what you are going through, don't fret, you are not alone. In this brief article, we will go over probate and who you can contact to help sort the probate process all out for you.
What Is Probate
Probate is a set of steps that settles your loved one's estate according to what they left on their will. Probate ensures that any property or money left behind is appropriately distributed as intended per the will or applicable law.
Probate Process Steps
If you have to go through a probate court hearing, it is important to note that there are six steps. This process can be daunting, so it may be best to have a lawyer representing you to help with the probate process guide.
1. Filing the Probate Petition
The first step in the probate is to file a petition with the appropriate court where your loved one lived. If your loved one had a will, the listed executor should file the petition. If there is no executor or will, then any heir or other beneficiary can file the petition.
Once filed, a probate examiner will be assigned. A probate examiner is a court staff member who will do the work to deny or grant the petition.
If there are no objections and the process goes well, the court will schedule a probate hearing. These hearings are typically scheduled within three to five weeks after the initial filing.
2. First Probate Court Hearing
At the first probate court hearing, the court will appoint a representative of the estate. When this happens, the court must approve of this decision, and it must appoint this legal representative with the powers needed to act on behalf of the estate.
The legal representative appointed is also called the administrator or executor of the estate. As stated earlier, the person named in the will as the executor will typically be the one who will legally represent the estate.
There are cases, though, where the listed legal representative may not be alive, may not qualify, or may not want to be the executor. Then, in that case, an heir may nominate themself, or the court will appoint the appropriate representative.
Once the appropriate party is appointed, the court will order "Letters Testamentary." These letters state who has the authority to act for the estate. The letters also allow that person access to the information and the assets in the estate during the process.
During this hearing, the judge will ask about the relationship between the deceased and the executor. They will also ask why the estate is going through probate.
Common reasons why the estate may go through probate are the size of the estate or the type of assets that are being distributed. In addition, the court may require or order a bond on the legal representative to cover any negligence or prevent estate loss.
It is important to know that the first hearing may need continuation if the case needs further review later during the process. The continuation happens when the court needs additional information or deficiencies in what was already given.
3. Executor Responsibilities
The court will let the executor know of their responsibilities during the probate process at the initial hearing. The executor will need to contact all the listed beneficiaries and give them a notice about the probate.
All known creditors will receive a "Notice to Creditors" form. If there are unknown creditors, a notice will be published in a newspaper to alert those creditors about the probate.
The executor is also tasked with gathering and appraising all the assets that the decedent possessed. They will have to keep a record of all the inventory and their monetary assessment.
Once they know how much money the estate is worth, the executor will pay off any outstanding debts. These debts include any claims that creditors make.
Lastly, before the executor can file a petition for final distribution, they must pay all applicable taxes. These taxes include any federal and state estate taxes.
4. Petition for Final Distribution
Upon the completion of the third step, the executor can then file a petition for final distribution. This part of the process is usually done around eight to twelve months after the initial filing of the probate.
5. Second Hearing
After filing the petition for final distribution, the court will review and check to ensure that the executor met all the appropriate steps.
They will double-check to ensure that the executor performed their listed duties correctly and appropriately paid the taxes and known creditors. Finally, if satisfied, the court will allow for the distribution of the remaining assets to the listed heirs.
6. Closing the Estate
Once the beneficiaries have received their portion of the assets, the executor will ask the court to release them of their role. The court will review submitted receipts and records, and they will close out the probate.
Possible Will Disputes
If there are any disputes about the will, the judge will review. The judge will check the evidence presented to ensure the validity of the dispute. There are only a few allowed reasons for a will to be contested. The four reasons allowed to contest a will are:
- There is possible fraud
- The decedent was not mentally fit to sign the will
- Issues with the way the will was executed
- Undue influence
If any of these reasons are presented, then any beneficiary can contest the will.
This dispute will pause the probate process and create a new case for the will contest. If a party can prove its case, the judge will rule whether the entire will is invalid or a portion of it.
Does Every Estate Need Probate?
Not every estate has to go through the probate process, especially if the estate is small. If the estate is small enough to qualify for a small estate administration, the distribution of the listed assets will happen informally.
One hearing may still be necessary to name a legal representative, but other than that, the process is a lot less formal. The court does not have strict control over what happens in this type of proceeding.
Probate Alternatives
There are situations where probate can be avoided, depending on state laws and the types of estate and assets involved. For example, insurance policies typically allow named beneficiaries entitlement to the assets listed in the policy. The proceeds from the insurance policy are then paid directly to the listed beneficiary.
Joint ownership accounts, such as bank or investment accounts, also skip the probate process and pass directly to the surviving co-owner.
Living trust
A living trust is also known as a revocable living trust or revocable trust. This trust is a legal entity that holds your assets during your lifetime.The living trust will cover three phases of your life:
- While you are alive
- If you become incapacitated
- After you die
A revocable living trust alone will not avoid the probate process; the assets must be owned in the name of your trust.
In this trust, you can place vehicles, investment accounts, and other types of assets. While you are alive, the trust will hold these assets for you for your benefit.
When you create a revocable living trust and name yourself as the trustee, it will not feel any different from how you are used to managing your finances.
You must designate a trustee to manage the assets, and you must also list any beneficiaries for when you pass away. With a revocable living trust, you have the option to make changes or to revoke the trust at any time.
Do I Need an Attorney?
If you are overwhelmed with the probate process and want additional guidance, it would be best to reach out to an attorney. A lawyer who practices in the area of probate law has experience in settling estate cases.
Get Estate Planning Help Today!
Going through the probate process can be daunting and exhausting, especially if the estate is large and has plenty of assets. In addition, deciphering a will or any other documents that decide who will get what can quickly become overwhelming.
Contact us now if you want to learn more about what happens during the probate process or a probate court hearing. We believe that you deserve to have a trusted attorney to guide you through this tough time to help make the entire process run smoothly.