The Probate Process Explained
After you die, your estate will likely go through the court system of probate or estate administration where your debts will be paid and your assets will be managed and distributed according to your instructions. If your non-retirement assets are owned through a well-drafted and properly funded living trust, it is likely that probate will be unnecessary, though the successor trustee will need to administer the distribution of your assets. The length of time and expense involved to complete the probate of an estate depends on the size and complexity of the estate, local rules and the probate court’s schedule.
The Steps Involved in Probate Estate
While each probate estate is unique, most include the following steps:
- Filing of an application/petition with the proper probate court to Admit the Will and appoint the Executor (if there is a Will) or appoint an Administrator.
- Providing notice to all beneficiaries listed in the Will or to statutory heirs (if no Will).
- Publishing and sending the required notices to creditors
- Identifying, gathering and evaluating the decedent’s assets, and safeguarding same
- Identifying decedent’s debts and paying allowable debts
- Preparing an Inventory and Appraisement of estate assets by Executor/Administrator and filing same with the court, or an Affidavit in Lieu if permitted by law.
- Selling of estate assets, if necessary.
- Paying income and estate taxes, if applicable.
- Distributing the remaining assets to beneficiaries/heirs.
Frequently Asked Questions about Probate
What happens if someone objects to the Will?
During the probate proceedings, it is not uncommon to have someone object to a Will, through a process known as a “Will contest”. Will contests can be quite expensive and extremely stressful to litigate.
One has to have legal “standing” to raise objections and contest a will. This frequently occurs when, for example children are to receive disproportionate shares of the estate, or when distribution arrangements change from a prior Will to a later Will. In addition to arguments over the distributions, Will contests can also include disagreement over the person designated to serve as Executor or claims that the Testator lacked capacity to sign the Will or that they were under duress to do so.
Does probate administer all property of the deceased?
Probate is generally a process through which title to assets is transferred from the name of the deceased to the names of the beneficiaries.
Specific types of assets called “non-probate assets” do not go through probate. These include:
- Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate.
- Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
- Life insurance policies where there are designated beneficiaries.
- Bank/financial accounts with “pay on death” (POD) or transfer on death (TOD) designations or “in trust for” designations.
- Property owned by a living trust. Legal title to such property passes to successor trustees for distribution to the beneficiaries without having to go through probate.
Do I get paid for serving as an Executor?
Executors receive compensation for all legitimate out-of-pocket expenses incurred through the management and distribution of the deceased's estate. Additionally, depending on the provisions of the Will an executor may be entitled to a fee and if the Will is silent on the matter, an executor may be entitled to statutory fees, which differ from location to location and can vary depending on the size of the probate estate. The Executor must fulfill his or her fiduciary duties on behalf of the estate with the highest degree of integrity and can be held liable for mismanagement of estate assets. It is advised that an attorney and accountant be retained by the Executor to advise and assist with his or her duties.
How much does probate cost? How long does it take?
The duration and cost of a probate proceeding can substantially vary depending on a number of factors including the value and complexity of the estate, the existence of a Will or not, and the location of real and personal property owned by the estate. Also, disputes with alleged creditors over the debts of the estate as well as Will contests can also add significant cost and delay. Common expenses of an estate include executor’s fees, attorney’s fees, accounting fees, court fees, related administration expenses, appraisal costs, if necessary, and surety bonds, if applicable. We either charge a flat fee for handling probate matters, which varies from case to case, depending on the specific facts of each matter or we charge an hourly fee with a minimum fee paid up front. We discuss each payment option with our clients and allow them to decide the payment method that makes the most sense for them. Most estates can be settled through probate in about 6 to 18 months, assuming nothing out of the ordinary and there is no litigation involved.