Probate is a court-supervised process to transfer assets as provided in a will, or if there is no will, to the heirs in accordance with state law.
The process generally begins with locating a will, which is then filed with the probate court. If the will is accepted, the court appoints a personal representative. If there is no will, the court will review the petition(s) filed and appoint someone to serve as the personal representative.
The personal representative is a fiduciary appointed by the court who is in charge of collecting the decedent's assets, paying debts and taxes, and distributing the remaining assets in accordance with the will or state law. When there is a will, the personal representative is called an executor. When there is not a will, the personal representative is called an administrator. Regardless of the title, the personal representative has the same job: to collect the decedent's assets, pay the decedent's proper debts and distribute the assets to those entitled to distribution.
In a probate proceeding, all of the heirs and beneficiaries must be formally noticed in writing and given the opportunity to review the will, if one exists, and make any appropriate challenges or contests.
Assets in the decedent's name alone must be probated to transfer title. Some assets, like life insurance and retirement accounts, are not subject to probate and go directly to the named beneficiary (by operation of contract). Other assets, like those held in joint tenancy or in a trust, are also not subject to probate, and a different set of rules applies to transfer title. However, all of these assets, whether subject to probate or not, are still counted as part of the estate for purposes of calculating whether taxes are due.
In short, the timeline of events consists of 5 basic steps:
- The assets of the decedent are identified and re-titled;
- Creditors and taxes are paid;
- The decedent's final income tax return and return for the estate are filed;
- An accounting (of the assets on hand, credits, and expenses) is often made to the beneficiaries; and finally,
- The assets are distributed to the beneficiaries.
There are certain advantages associated with probate. For instance, the court-supervised process offers a form of protection for the heirs and beneficiaries. Probate also cuts off the claims of creditors after a specified four-month period.
However, there are a number of disadvantages as well. First, probate proceedings are time-consuming; the typical duration of probate is about 9 months to 2 years. Because of current back-logs with the court dockets, it sometimes can take several months to schedule a hearing. If the estate is large and complex, the duration could extend well beyond two years. Second, probate may be expensive. The fee is set by state law and is based on the size of the probated estate, without regard to the decedent's debts. Third, court proceedings are inherently inflexible. Finally, probate offers no privacy; probate court proceedings and documents filed are a matter of public record.
If a loved one has recently passed and you find yourself in probate, we will help guide you every step of the way. If you are looking to the future, a well-drafted estate plan may allow you and your loved ones to avoid probate altogether.