What Is Probate? Everything You Need to Know About The Probate Process

Probate is typically necessary when the deceased person owned significant assets in their own name and did not have a valid will or trust. In this case, probate is needed to determine who should inherit the assets and to ensure that the assets are distributed according to the laws of the state where the deceased person lived.

The probate process is overseen by a probate court. The specific process can vary depending on the state where the deceased person lived.

A personal representative, also known as an executor, is typically appointed to manage the estate during probate. This individual is responsible for inventorying the deceased person’s assets, paying debts and taxes, and distributing the remaining assets to the beneficiaries.

The probate process can be time-consuming and can take several months to a year or more to complete, depending on the complexity of the estate.

The probate process is often expensive, as it involves legal fees, court costs, and other expenses.

A trust is a legal agreement in which a person, called the grantor, transfers ownership of their assets to a trustee. The trustee is responsible for managing the assets and distributing them to the beneficiaries according to the terms of the trust. One benefit of using a trust is that it can help avoid probate, as the assets are not owned by the grantor at the time of their death and are therefore not subject to probate.

A beneficiary is a person or entity that is entitled to receive assets from an estate, trust, insurance policy, or other financial account. Beneficiaries can be named in a will, trust, or other legal document, and they are typically entitled to receive the assets directly upon the death of the person who owned the assets. Naming beneficiaries can help avoid probate, as the assets can be transferred directly to the beneficiaries without the need for probate.

Probate Court: 

In short, the probate court is the legal process of having the court oversee and determine the validity and authenticity of a will, handling a will that’s contested, and dispersing the assets of the decedent’s estate in appropriate legal order according to state law. There is only one part of the judicial system that deals with wills, estates, conservatorships, a living trust, and guardianships, and that is through a probate proceeding in the Probate Court.

The Estate: 

An estate is not limited to physical real estate. In the event of death, an estate is the sum total net worth of a deceased individual and includes all assets involved that the deceased owned. The estate includes their home, any other real property, businesses, material possessions, bank accounts, investments, vehicles, etc. The more assets that would potentially be included in a taxable estate, the greater the likelihood that state laws will require probate. The size of the estate is key to determining if one can avoid probate with a small estate affidavit, will only need a summary administration, or a formal administration is required according to state law. Seeking the appropriate legal assistance with estate planning is vitally important to do before a person died.

Decedent: 

The decedent is the appropriate legal term for the deceased person whose estate is in question. Prior to someone’s death, probate laws and other pertinent state laws should be reviewed with an experienced probate attorney. At that time, a will can be established, an executor can be established according to the probate laws of that state. Then, after the decedent dies, the personal representative is the executor for the estate. If there is no will in place upon the decedent’s death, then the personal representative is an administrator of the estate.

Beneficiaries and Heirs: 

While these two terms are often used synonymously, there is a significant distinction. A beneficiary is an individual listed in a will, living trust, or insurance policy set to receive assets from the estate of the deceased. Whereas an heir must be directly related to the deceased by blood, such as a spouse, child, or sibling. The distinction between an heir and a beneficiary becomes more significant if the deceased passed without a living will. Without a will, there are rarely beneficiaries outside of blood-related, rightful heirs who can be legally recognized according to state laws.

Administrators, Executors, and Personal Representative: 

All of these roles are significant in the probate process and are subject to the legal jurisdiction of the probate court. They even share many of the same responsibilities, such as paying taxes, selling real estate, and gathering and dispersing assets amongst beneficiaries. The personal representative of an estate is the executor or administrator for the estate of the deceased individual and serves as a fiduciary of the estate’s beneficiaries. However, the administrator is the person appointed by the court to be in charge when someone dies without a legal will and testament in place, and the executor is responsible for overseeing the execution of the existing will.

Probating an estate is a complex process that involves many factors including a hefty amount of paperwork, court appearances, and jumping through legal hoop after legal hoop. A licensed probate attorney is an attorney who specializes in the intricacies of the probate process. They can drastically ease the stress and frustration that typically accompanies the process of probate, by taking a large part of the workload off of the shoulders of the decedent’s family, beneficiaries, and executor. They can also advise if the decedent’s family can avoid probate altogether. Additionally, you can consult your probate lawyer on the specific circumstances and state laws regarding the dispersal of assets.

Probate is typically necessary when the deceased person owned significant assets in their own name and did not have a valid will or trust.

Probate is typically necessary when the deceased person owned significant assets in their own name and did not have a valid will or trust.

Probate is typically necessary when the deceased person owned significant assets in their own name and did not have a valid will or trust.

The probate timeline can be time-consuming and can take from 3 to 36 months depending on the complexity of the estate.

To avoid probate, a person can transfer ownership of their assets to a trust, name a beneficiary on financial accounts and insurance policies, or transfer ownership of their property to another person through a process called “joint tenancy with right of survivorship.”

If you do not have a Will, everything you own will go through probate court if your assets are above the limit set by your county and state that does not need to pass through probate. Most states allow anything under $70,000 to go to probate summary instead of administration. In addition, any assets that do not have a named beneficiary have to go through probate. The following situations will always go through the process:

• Any inheritance where the Beneficiary passes away before the decedent: If a named beneficiary passes away before the person who owns the estate without an updated will, the courts will need to be involved. 

• Non-titled property: Non-titled property is anything owned without paperwork because there is no way for anyone to know what the wishes of the decedent were. Household items such as appliances, clothing, furniture, and other general items could fall into this category. If your Will names these items and appropriately states your wishes, you can eliminate probate.

• Partner-owned investment property (tentants in common): In cases where properties are titled as “tenants in common,” and where clear instructions aren’t present in a Will, a probate court will step in to help determine how your share is passed down. Keep in mind, if your Will makes your wishes clearly known, the process becomes simplified.

• Sole ownership property: Property that has no beneficiary on the title then it will go through probate to determine ownership of the real estate. In some states, you can avoid this by adding“POD” (payable on death) or “TOD” (transfer on death) to the title or deed.

Certain assets and property will not go through probate court. By properly planning, you can help avoid probate for any of the following. 

• Items that have a Beneficiary named: Naming a Beneficiary on an asset means you can avoid probate. For example, life insurance policies have named Beneficiaries, so proceeds go directly to them without having to go through probate.

• Items placed inside a Living Trust: Because a Trust owns the items inside it, when you pass away, anything in your trust can go to your Beneficiaries as specified by the Trust, thus avoiding the probate process.

• POD (payable on death) or TOD (transfer on death) items: When you title property and assets such as bank accounts, real estate, retirement accounts, stocks and vehicles with “POD” and “TOD,” you can bypass probate and pay or transfer items directly to your noted Beneficiary. Note that some states do not allow real estate to be titled this way.

• Jointly titled property (with Survivor’s Rights): Property titled jointly with Survivor’s Rights will automatically go to a Survivor after you pass. There is no need for the property to go through probate in this case.

After the owner of an asset dies, the court must be petitioned for a probate case to be opened and an executor must be appointed that is in charge of administering the estate. Usually, a petition for probate is issued quickly after someone passes away with assets that need to be probated.