Probate Explained: Importance, Definitions and Timelines

Probate

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If you are pulling your hair out trying to understand the probate process, you aren’t alone. Probate is the process in which the court makes sure that a deceased person’s debts are paid and remaining assets are distributed to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person.

Probate is only necessary if a clear beneficiary is not named for all assets after someone passes away. If a beneficiary is not named, then the court has a responsibility to make sure the assets are taken care of and passed to successors and creditors are paid.   Probate will last longer and be more complex based upon how many beneficiaries are involved if an active business is part of the deceased assets and the general complexity of the estate. 

The history of probate dates back to William the Conqueror who separated the ecclesiastical courts from the secular courts. The result was that the ecclesiastical courts ultimately acquired jurisdiction of succession to heirs including testamentary succession, while the secular courts retained jurisdiction of succession to freehold interests in realty, including jurisdiction over wills. 

This is important to note because counties in the United States now preside over probate proceedings to oversee the succession of assets from a decedent to heirs.

We’ll start with covering what probate is.

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What Is Probate?

Probate is the term for a legal process that occurs at the county level where a person passes away that has assets without a named beneficiary on the account. During probate, it is determined if there is a will and if it is authentic, however, an estate can go through the probate process even if there is a will. The assets must have a clear beneficiary to pass to upon the owner’s death. If there is not a named beneficiary on the account, the assets go through probate where they are administered, creditors are paid and the wishes of the person passing occurs. If there is no will then each state has guidelines for how the deceased person’s assets are distributed.  

Probate is the court-supervised process whereby a decedent’s assets are distributed to a decedent’s heirs and creditors are paid back.  Probate is a judicially supervised process for marshaling a decedent’s assets, paying proper debts, and distributing the remaining assets to heirs. This court process is what is commonly referred to as probate. 

When Does Probate Start?

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.

The Structure Of The Probate Process

Administering an estate is the process of doing an inventory of estate assets, paying taxes like federal estate taxes, inheritance taxes, and estate taxes at the state level if needed. Other liabilities are also handled at this time like payment to creditors and other necessary expenses from the estate and finally distributing the assets of the estate to the heirs and beneficiaries of the estate.

Lifespan Of Probate

A probate summary can take 3 weeks to 3 months on average which is different from formal probate administration which can take anywhere from 6 months to over 3 years. A standard probate timeline takes 2 years to finish.
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How Probate Works

Since probate is the analysis and transfer of estate assets previously owned by a deceased person, there are steps and a process defined by the state in which the person passed away which dictates how the administration of the estate is handled. When a person dies, his or her assets are commonly reviewed by a probate court. The probate court oversees the handling of the estate until it is distributed to heirs, beneficiaries and ultimately closed. An attorney will typically open the probate administration and then an executor is appointed to handle the probate process and distribution of estate assets after an inventory of assets takes place.

Documentation Needed For Probate

In many cases, the deceased person has established documentation, which contains instructions on how their assets should be distributed after death which is commonly known as a will. However, in some cases, the deceased does not leave a will and in that case, it’s important to understand how your state handles the distribution of assets. 

Are there different types of probate? 

Yes. There are two types of probate, probate summary and probate administration. A probate summary is a quick process usually resolved for small estates where a probate administration is the full process of stewarding the assets safely to the beneficiaries while paying debts and creditors. An executor is involved in probate administration.

What is involved In The Probate Process

There are many vital steps in probate and questions that you might have. The probate process is complex and has multiple different steps and terms. The process can be complicated but it is necessary to make sure that the assets within the decedent’s estate are handled appropriately.

What Assets Have to go Through Probate Court?

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.

What Does Not Have to Go Through Probate Court?

Certain assets and property will not go through probate. 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.

Probate with a Will VS Without A Will

The executor is responsible for filing the will with the probate court and initiating a process to prove its authenticity. The deceased person who has provided a will is known as testator, which can be any relative that predeceased them or an appointed financial advisor. A state may have different rules on how long after death one must file their last wishes in order for it to become legally binding: typically within six months of death but no more than two years from the date of execution if left behind by someone without heirs.

Probate with a will is different from probate without a will is when the deceased does not have an estate plan or has left no word on how he would like his assets distributed. When this happens, a court can set up some guidelines for the distribution of property and follow state laws to decide who gets what. The courts usually appoint someone known as administrator for this process- they act as the executor and receive all legal claims against the estate from family members before distributing it in accordance with law.

Does An Estate Have to Go Through Probate?

Probate is not always required. Based on different circumstances and estate planning, probate might not be necessary and many times can be avoided by careful planning. If a person dies and all of their assets have clear beneficiaries and a will that directs how the estate should be administered, then there is no reason for the probate court to be involved. Many people are not aware of when probate might be required. This can save time and money by avoiding the process entirely.

If an individual dies without property, debts, or taxes then it is possible that no probate will ever need to take place! If any assets were left behind with joint ownership between two parties, joint tenancy agreement or beneficiary designation agreements in a governing power of attorney for financial matters related to incapacity among other legal documents – there may still be some work needed following their death but this won’t require the full-blown court proceeding necessary during formal estate proceedings which would include all these steps mentioned above as well as more complicated ones too difficult to list here due simply because they vary from case-to-case depending on what

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Who is involved in the probate?

There are many people involved in the probate process and many times there are multiple names for the same person. Because different states refer to the same person with different names, probate can be confusing when talking about it on a national level. It’s important to know the key roles and people involved in probate.

There are many more individuals that may be involved in probate and some states use different terms to refer to the same person.

Important probate terms

There are lots of terms and phrases thrown around in probate. For that reason we’ve created a full probate glossary. You can find any of those terms below and click on them for their full definition.

Blocked Account

A blocked account in probate refers to cash or securities that are placed in a bank subject to withdrawal upon court

CAPACITY

Legal capacity is the attribute a person can acquire new rights, or transfer them depending on their mental state. This does

SUBSTITUTED JUDGMENT

The courts can order a conservator to take certain actions relating the estates of their clients. This includes making gifts or

WARD

The court grants a person the responsibility of caring for and protecting another. A ward is also the name given to a

Legatee

a Legatee is a person named in a will to receive property. A legatee is another name for the more commonly

ANCILLARY ADMINISTRATION

Administration in a state other than the decedent’s domicile, when there is also an administration at their place of residence.

JUDICIAL COUNCIL

The Judicial Council is an essential body to the administration of justice in Florida. It was established for two main purposes:

Residuary legatee

The person or persons named in a will to receive any residue left in an estate after the bequests of specific

LAPSE

The failure of a gift of property is left in the will because when someone dies, their beneficiary is deceased and

EQUITY

The difference between what you owe and the value of your property.

Trust

The handing over of property to a person to be held for the benefit of another (i.e. held in trust).

Probate

The court-supervised process whereby a decedent’s assets are distributed to a decedent’s heirs and creditors are paid back after s/he dies. The legal process

Quitclaim deed

A deed that transfers the owner’s interest to a buyer but does not guarantee that there are other claims against the

Capital loss

The loss that results from the sale of a capital asset, such as real estate, jewelry, or stocks and bonds. When

CITATION

A court-issued writ that commands a person to appear at the specified time and place for whatever reason, or not do

PUBLIC ADMINISTRATOR

An officer of the court who handles all aspects related to an estate when no other person has been appointed as

ABATEMENT

Cutting back certain gifts under a will when necessary to create enough money for taxes, debts and other bequests that are

NUNC PRO TUNC

The phrase, “now for then” is a Latin word that means you can issue an order on one date but it

DECISION

The judgment is a formal, legal pronouncement that vindicates one party’s rights and sets them above those of another person or

States Have Different Probate Laws

One states probate laws are different from another states. For instance, in Florida, the term personal representative is used instead of executor which is used in California. Since each state has individual tax laws and process, you can find a full list of probate state laws here.

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What Is Probate Court?

Probate court is the process in which a court oversees the administration and distribution of an estate. There are multiple probate court hearings involved in probate court which each serve the purpose of moving the probate case forward.

What is the history of probate?

The history of probate dates back to The Norman Conquest, 1066 A. D., where a series of changes in the government, judicial system, and social organization of England took place which affected the development of the laws of wills, relating to real estate, and the laws of testament, relating to personal property. Before the Norman Conquest there had been no separate ecclesiastical courts in England and the clergy took part in the proceedings of the secular courts. William the Conqueror separated the ecclesiastical courts from the secular courts. In the field of probate the result was that the ecclesiastical courts ultimately acquired jurisdiction of succession to heirs including testamentary succession, while the secular courts retained jurisdiction of succession to freehold interests in realty, including jurisdiction over wills. 

This is important to note because counties in the United States now preside over probate proceedings to oversee the succession of assets from a decedent to heirs.

If you are in the process of probate and need to receive funds immediately

Now that you have an understanding of probate, you can understand that it’s a lengthy process. There are options for receiving probate distributions early if that is something that you need. The process of dealing with real estate property in probate can also be very difficult. We cover that topic fully in our guides on inheriting real estate.

If you have more questions about probate, you can look in our full probate glossary, read our guides below or call us. We are happy to provide you with information on receiving a probate advance as well as recommended attorneys in our attorney referral program.

Legal Disclaimer: Please note that Inheritance Advanced is not a lender. Inheritance advance does not provide probate loans, inheritance loans, or estate loans, rather, an advance on a portion of proceeds signed over to Inheritance Advanced. Inheritance Advanced is also not a probate attorney and any information in this article should not be misconstrued as legal advice. We recommend that you seek the advice of an attorney, CPA, and tax attorney regarding any decisions pertaining to your probate.

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