Learn What Happens During Probate
We live in a capitalist society where people can own and accumulate property. In such a society, when someone dies, they leave behind an estate – property, money, assets, and possessions – which has to be distributed to the person’s heirs and beneficiaries. This is usually done in a court of law through a process known as probate.
There’s one problem with court procedures… they are usually very complicated!
Like many other legal procedures, the probate process can be quite confusing, especially if it is the first time you are going through the process. Depending on whether the decedent left a will or not, or whether there is someone contesting the will, it can also be a long and frustrating process sometimes. Still, it is a necessary process since it ensures that the decedent’s estate is in legal order and that it goes to the rightful persons. Luckily, there are no contestants in most cases, which makes the process pretty straightforward. A good understanding of the process can also make things a lot easier.
Before we look at what happens during the probate process, let’s first define what the word means. Probate is defined as the court-supervised process through which the decedent’s last will and testament are authenticated, debts are settled and the legal title to the property held by the decedent is transferred to heirs and beneficiaries.
Only property that is owned by the decedent and that which does not pass to others by ownership or designation is subject to the probate process.
So, what happens during the probate process?
Different states have different laws to determine what is required during probate. However, regardless of the differences in these laws, many of the steps involved are generally very similar.
FILING OF PETITION AND NOTIFICATION OF HEIRS AND BENEFICIARIES
Once a person dies (whether they had a will or not), the probate process starts with the filing of a petition to probate the decedent’s estate in a probate court. This process petitions the court to admit the will to probate and either appoint a personal representative or an administrator of the estate, in case the decedent died intestate (without a will).
The process of completing and submitting the petition is pretty straightforward. You can easily download the petition forms online, or get them from state courts.
In addition to filing the petition, a notice should be given to the decedent’s heirs and beneficiaries about the court hearing regarding the petition. This notice should also be published in local newspapers. The aim of doing this is to notify other interested parties, such as unknown creditors of the decedent, about the court hearing regarding the petition. Any heirs or beneficiaries that have objections to the petition are allowed to present their objections to the court at this point.
AUTHENTICATION OF THE LAST WILL AND TESTAMENT
If the decedent died testate (with a will), the will is authenticated during the court hearing and confirmed to be valid. During this hearing, anyone objecting to the will be given a chance to air their objections – this could be due to the fact that the will is not drafted property or because the person has in their possession a more recent will.
So, how does the court confirm the validity of the submitted will?
Authentication is done by checking whether the will was drafted in accordance with the state’s probate code. Normally, a will needs to be signed by the testator (the person making the will) in the presence of two witnesses. These witnesses should also append their signatures to the will.
The witnesses serve the purpose of acknowledging that the testator was of “sound mind” at the time of making the will. Without the signatures of two witnesses, the will may be declared invalid by the probate court.
In many states, the will is also required to be accompanied by self-proving affidavits. These are notarized documents that are usually signed during the execution of the will. They include an oath by each witness confirming that they were present at the time of execution of the will. If a will is not accompanied by self-proving affidavits, the witnesses will be asked to sign an oath in front of an official of the probate court confirming the authenticity of the will.
The heirs of decedent may also challenge the validity of the will in probate court if they believe that something within the will is problematic.
Imagine a situation where a man gets a mistress a short while before his death. Upon his death, the man’s children discover that their father disinherited them and declared that his estate should be transferred to the mistress. In such a situation, the children have a right to contest the will.
Similarly, if the heirs believe that the signature on the will was forged, they may contest the will, in which case a handwriting expert might be called upon to authenticate the document. A will might also be invalidated if it can be shown that the testator was not of sound mind or was under duress during the execution of the will.
In case the probate court declares that the last will and testament of the decedent is invalid, it will be ruled that the decedent died intestate. In such instances, the estate of the decedent will be transferred to heirs and other beneficiaries based on the rules of inheritance established by state law.
APPOINTMENT OF PERSONAL REPRESENTATIVE OR ADMINISTRATOR
Once the will has been authenticated and validated, the court will appoint an executor, who is also referred to as a personal representative. In case the will was declared invalid, or in the event that the decedent died intestate, an administrator of the estate will be appointed.
The role of the personal representative or administrator is to oversee the probate process and settle the decedent’s estate. In most cases, the executor is chosen by the decedent and his name included in the will.
If the decedent died intestate, the court appoints the decedent’s next of kin as the administrator. This is usually the decedent’s spouse or an adult child. The role of administrator is not an obligatory role.
A person appointed as administrator is free to decline the role, in which case the court will be required to appoint another person. If there is a dispute over this role, or in the event that the children of the decedent are below legal age, a neutral public administrator will be appointed by the court. Estate funds will be used to pay the public administrator an hourly fee.
Once an executor or administrator is officially appointed by the judge, they are given full authority to deal with the estate on behalf of the decedent. They are also issued with a certified court document that is known as the “letters testamentary”, “letters of administration” or the “letters of authority”. This document gives the personal representative the ability to legally enter into transactions on behalf of the estate. Without these document, the personal representative cannot access or close the bank accounts owned by the decedent.
It is the role of the personal representative to take immediate action to sensibly invest assets that fall under the estate. The personal representative is required by law to act with caution towards the estate and to always keep the best interests of the beneficiaries at heart. If the personal representative violates this requirement leading to loss or wastage of assets, the court can order him or her to pay compensation to the beneficiaries. On the other hand, if the personal representative makes sensible or appropriate investment decisions that end up resulting in loss of assets nonetheless, he or she will not be held responsible.
A good example is a situation where the personal representative invests estate funds in promising stocks, which unfortunately decrease in value due to a general downturn in the market. The personal representative cannot be held responsible in this case. If the personal representative were to lose estate funds in risky and speculative investments, however, then he or she would be required to pay compensation to the beneficiaries.
Some states will require the personal representative to post bond before accepting the letters of administration. This bond serves as an insurance policy. In case the personal representative commits mistakes- whether deliberately or unknowingly – that lead to loss or wastage of assets, this bond is then used to compensate the estate.
In exchange for his troubles, the personal representative is entitled to some reasonable compensation. This compensation comes from estate funds and is usually limited to a certain percentage of the estate. In most states, the limitation is 5%, though the fee is subject to the court’s approval. If the fees seems to be too much, considering the effort expended the personal representative, the beneficiaries of the estate can object the fees in court.
LOCATION AND VALUATION OF ASSETS
After accepting the letters of administration, the first step of action for the personal representative is to create an inventory of everything owned by the estate and to take possession of these properties to ensure they are protected during the probate process.
The purpose of this inventory is to make known to heirs and beneficiaries all the property and assets owned by the estate, how the property and assets are being held and their approximate value.
Depending on the decedent, this can be a straightforward or a challenging process. It is not uncommon for some people to possess assets that no one knows about it. If such a person has not listed such assets in his will, locating such assets might turn out to be quite a task. A good example of such assets is money owed to the estate.
If the decedent’s estate includes bank accounts and other such financial assets, the personal representative will need to take them into his possession by presenting the letters of administration to the financial institutions under which these accounts are held. If the decedent’s estate includes real estate, the personal representative does not need to take physical control of the property in order to protect it.
Still, he or she needs to safeguard the property – through payment of taxes, insurance and mortgage payments – until the property is transferred to the appropriate heir. If the decedent owned any movable assets, the personal representative might have to take actual possession of these and keep them safe.
Once the personal representative has located and taken charge of all assets and properties owned by the estate, he then needs to determine the value of these properties and assets at the time of death. This is usually done through provision of account statements and appraisals by experts. The detail and accuracy of the appraisals will generally depend on the degree of scrutiny being shown by the heirs, beneficiaries and other interested parties.
Along the value of each asset, the personal representative should also indicate how the value was arrived at.
IDENTIFICATION AND NOTIFICATION OF CREDITORS
Before the estate can be distributed amongst heirs and beneficiaries, any creditors owed by the decedent need to be notified and their debts settled.
Notices of the death of the decedent should be sent to all known creditors. The notice of death should also be published in local newspapers to notify any creditors that the personal representative does not know about.
Notifying creditors about the death of the decedent gives them an opportunity to present any claims they might have, accompanied by supporting proof for these claims.
There is a limited period of time during which the creditors must make their claim, which varies between states. If this time limit passes, creditors can no longer make a claim. The personal representative also has the ability to reject a creditor’s claim if he believes the claim is not valid.
PAYMENT OF DEBTS AND BILLS
If all the claims presented by the creditors are valid, the personal representative will make payments to the creditors using funds from the estate. The personal representative will also pay any bills that might have been left behind by the decedent, including the costs and expenses of administration, funeral expenses, hospital bills if the decedent died due to an illness, and all other claims. Before these bills are paid, the surviving spouse and children of the decedent are usually given an allowance from estate funds.
This amount given in the allowance varies between different states, and is given regardless of whether the decedent died with or without a will. The personal representative is also required to prepare and pay taxes accrued by the decedent for the year during which he died. The taxes should be paid within 9 months. If the estate has no liquid cash to pay bills and taxes, the personal representative might have to liquidate some assets to accomplish this.
With all taxes, creditors and bills paid, and after the required waiting times, the personal representative can now go ahead and transfer the remaining assets of the estate to heirs and beneficiaries as stipulated by the decedent’s last will and testament, or according to state inheritance laws if the decedent died without a will.
Before distribution, the personal representative will have to submit a list of all expenses that have been paid from the estate account during the probate process and then petition the probate court for permission to distribute whatever is remaining.
Some states allow the beneficiaries to waive the requirement for the personal representative to provide accounting showing how estate assets were managed during the probation process.
Once the court issues permission for the remaining assets to be transferred to beneficiaries, the personal representative can now go ahead and draw up new ownership documents for properties, liquidate assets and transfer stocks to appropriate recipients.
Unless the will states otherwise, the personal representative has the discretion to distribute the assets under the estate either in cash or in kind. If there are minors among the beneficiaries of the estate, it is the responsibility of the personal representative to set up trusts to hold the inheritance on behalf of the minors, since minors are not allowed by law to own property.
After the remaining assets have been distributed to beneficiaries, the estate can finally be closed. The judge approves the settlements and closes the estate. At this point, the personal representative is no longer required and is relieved of his or her duties.
SHOULD YOU HIRE A PROBATE LAWYER?
Most probate cases are not really complicated. Majority of the work is usually sorting through the decedent’s papers and making numerous phone calls. Many of the documents required in court are usually fill-in-the-blanks forms that you can complete easily. If you find yourself appointed as the executor of an estate and no one fighting over the estate, you can easily handle the entire process by yourself without having to hire a probate lawyer.
Sometimes, however, some complexities might arise during the probate process, making the entire process a lot more challenging. In such instances, it is always a great idea to have a probate lawyer by your side. Below are some situations when it makes sense to hire a probate lawyer.
When There Are Potential Disagreements Over The Will
Sometimes, some of the beneficiaries named in the will might not be in agreement with the terms of the will. Some children might feel that the terms stipulated in the will are not favorable to them. Cases where the decedent had a divorced spouse also commonly result in disagreements.
If it seems like a probate case will have potential disagreements, it is best to hire a probate lawyer to help you handle any disputes that might arise from the disagreements.
When The Will Needs To Be Altered
In other instances, the beneficiaries named in a will might not be willing to take some of the property that has been left to them and may wish to have it transferred to others. Such instances require that the will be altered in a court of law.
The process of altering a will can be long and complicated, and it is best to have an experienced person advising you on how to deal with such a situation. Alteration of the will might also lead to disagreements, so it best to have a probate lawyer to help you handle any disputes that might come up.
When There Is Not Enough Money In The Estate To Cover Debts
Sometimes, the estate left by the decedent might not be enough to cover the debts he has left behind. In such situations, you will need to figure out which debts you are going to pay. If you notice in your initial investigation that the estate may not have enough money to cover its debts and taxes, it is best to seek legal advice. A probate lawyer will help you determine which debts to settle first, since state laws prioritize some creditors over others.
Having a probate lawyer can help you navigate the above issues. A probate lawyer can also help you avoid making mistakes in the administration of the estate. Remember, if you make mistakes that lead to loss or wastage of estate assets, you might be personally liable for the losses, even if you made the mistakes unknowingly. With a probate lawyer by your side, it will be easier to avoid such mistakes.
IS PROBATE ALWAYS NECESSARY?
While the probate process helps ensure that the decedent’s estate goes to the rightful heirs, it is not always necessary for an estate to go through the probate process before being passed on to beneficiaries. In most states, the probate process is not necessary for “small” estates.
The assets of small estates can be distributed without the need to go to court. The term “small” is relative and differs from state to state. For example, in California, small estates are those valued at $150,000 or less, while in Nebraska, an estate qualifies as small if it does not exceed $50,000.
Apart from small estates, properties that fall under the following categories do not typically go through probate:
Jointly owned properties: If a property is jointly owned with the “right of survivorship”, such property does not go through probate. In the event of death of a co-owner, the ownership of such property automatically transfers to the surviving co-owners. Such properties may include property held by married couples.
Designated Beneficiary: Some assets, such as life insurance policies, have a designated beneficiary who is selected to inherit the assets in the event of death of the owner. Such assets transfer to the designated beneficiary immediately and therefore do not go through probate.
Trusts: Trusts make it possible for the beneficiaries of the decedent to inherit assets held under the trusts without having to undergo the probate process.
Most people assume that the probate process is always a complicated and tedious affair. Unless there are conflicts or controversies concerning the decedent’s estate, the process is pretty straightforward, though it takes some time.
In many cases, the major part of the process involves activities that would be conducted even if the probate process was avoided.
Probate cases that turn out to be complicated become so, not because of the court’s involvement, but usually because of other complexities that stem from the decedent’s situation.
The same complexities would arise even if probate was avoided. Generally, it is a good idea to go through probate, even when it is not required, since this ensures that nothing is left to chance when it comes to fulfilling the wishes of the decedent.
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