Probate Court 101: What to Expect During Probate
Losing a loved one is challenging for a number of reasons, but it can be made even more difficult if you are responsible for navigating the many legal processes associated with probate court.
Losing a loved one is challenging for a number of reasons, but it can be made even more difficult if you are responsible for navigating the many legal processes associated with probate court. These court proceedings are meant to oversee the management of an individual’s Will or Estate Plan.
In cases where there is no Will, probate court will oversee the management of an Estate from beginning to end. This multi-step process can be both confusing and time-consuming, especially if you are not sure what to expect.
Probate Definition
Probate is a legal term that refers to the process of validating a Will or administering an Estate after an individual passes away. The probate definition includes the entire judicial process of taking inventory of the decedent's assets, paying debts and taxes, and distributing the remaining property to beneficiaries.
Probate is initiated anytime an individual dies, usually after a family records the death with the court. If the person had a Will, probate will be a relatively hands-off process after authenticating the document. In cases where the decedent did not have a Will, probate court will play a much more active role in the administration of the Estate.
How Long Does Probate Take?
Typically probate takes at least a few months to complete, with more complex cases lasting over a year. The biggest determining factor when considering the expected timeline is whether or not there is a Will.
Other factors that can impact the length of probate include the size of the Estate, any challenges to the Will, or complicated business or financial interests. Note that probate is regulated on a state level, and certain laws may affect the probate process.
When is Probate Required?
In many cases, probate is required anytime an individual dies. Few exceptions exist in states where laws are in place to protect small Estates from lengthy court proceedings. For example, in Nebraska Estate valued under $50,000 may be permitted to avoid probate court altogether.
There are certain circumstances that can make probate become longer or more involved. Here are a few situations where probate court would be required:
Someone dies without a Will: After someone dies without a Will, the court will step in to appoint an Executor. The intestate succession laws of that state will be used to determine what happens to the assets.
A Will is deemed invalid: Probate court will always step in to validate a decedent’s Will. When problems arise, the court may get more involved. This can happen if the Will is not notarized, does not meet state requirements, or if someone challenges the validity for another reason.
Additional legal oversight is needed: Many individuals forget to regularly update their Wills, and as a consequence sometimes assets (or even people) get left out. In cases where additional oversight is needed, probate courts will step in to determine how to distribute certain assets.
Beneficiaries predecease the decedent: If the beneficiaries or heirs named in an Estate Plan pass away before the decedent, the court will decide how to proceed. This is another situation where intestate succession laws will be used to distribute responsibilities and assets.
What Types of Cases Are Heard in Probate Court?
Probate courts deal primarily with the administration of Estates and related responsibilities. They ensure the validity of Wills, oversee the management of assets, and settle dispute cases.
In situations where an individual dies without a Will, probate will enforce intestate laws. If the individual owned property, the court will oversee a probate sale.
Other cases heard by probate courts include disputes over the management of Trusts, guardianships, and conservatorships. Probate court can intervene and decide how to proceed when these issues arise.
Step-by-Step Guide - What to Expect During Probate
Legal proceedings are often intimidating to navigate, but especially after the loss of a loved one. By reviewing the steps below you can get a better idea of how probate works and what to expect. While this preparation will not ease the grieving process, it can help you feel better prepared for the legal components of probate.
Step 1 - Opening Probate
The first step is for the Executor or close relative to file a petition with the court and initiate the probate process. Typically this person will need to submit a certified death certificate and additional supporting documentation.
The Executor should include any Estate Planning documents, such as a Will, beneficiary designations, or any Trust documents. These will help guide the next step of the process.
Step 2 - Authenticating the Last Will & Testament
The court will then authenticate the Last Will Testament of the deceased. This involves reviewing the document to ensure it was created in compliance with state laws. Most states regulate the type of language used, the form of the document, and the presence of witnesses.
Once the Will is proven valid, the court will officially appoint the Executor named within the document. If there was not a Will, the court will nominate the next-of-kin using state law.
Step 3 - Sending Notices
The Executor’s first responsibility is to notify any interested parties. This refers to any beneficiaries or heirs named within the Estate Plan. Without a Will, the Executor should notify close family members and relatives.
At this point, the Executor will also be responsible for notifying creditors or parties with a financial interest in the Estate. For example, the Executor needs to alert the decedent's mortgage lender, utility companies, or other service providers.
Step 4 - Taking Inventory
A crucial step in the process is taking inventory of the value of the Estate. This is done by appraising the value of any assets, checking investment and bank accounts, and assessing personal items. The Executor will also need to take stock of anything not included in the Will.
Inventory should then be reported back to probate court and any beneficiaries. The purpose of this step is to confirm the existence of assets and help with the future distribution. Inventory information will also be used to settle any debts.
Step 5 - Distributing the Assets
The distribution of assets is often one of the most time-consuming steps of the probate process. First, the Executor is responsible for closing any accounts and settling debts on behalf of the Estate. They must also file any necessary medical or life insurance claims.
This is also the point where assets or real estate will be sold if specified in the Will. Probate sales can take months or even years to complete, as the level of court oversight increases when large assets are involved.
The Executor will then need to distribute the remaining assets to the beneficiaries named in the Will, or according to state law. If any funds or assets are left to minors, the court will get involved yet again to oversee the creation of a Trust until the beneficiary comes of age.
Step 6 - Closing the Estate
Finally, after all debts have been paid, accounts closed, and assets distributed the Estate can be closed. The Executor will need to file a petition with the court to officially dissolve the Estate. Once approved, the closure of the Estate will become public record.
Note that many states have laws requiring Executors to be paid for this work. Probate is extremely time-consuming, and it is common to specify compensation within a Will. Any Executor fees (or court fees) will be paid at the time the Estate is closed.
Remove the Stress of Probate With the Help of a Trust
Many individuals are unaware of the reality of probate until they are forced to navigate the process. The demand for court appearances, numerous official documents and personal information, and other administrative duties can be both time-consuming and emotionally draining.
Probate courts also handle numerous issues beyond the administration of Estates, including Will disputes, guardianships, and even conservatorships. All of these topics have one thing in common: many of the associated challenges can be avoided with proper legal planning.
By creating a Will or Trust, you can ensure all of your assets are accounted for and managed according to your wishes. This can help prevent your spouse (or other close relative) from navigating lengthy court proceedings with no information to go on. Learn more about how to create a Trust with the help of our team and plan for the future today.
Probate court can be an intimidating process to navigate, especially because it coincides with an already difficult time. The best way to avoid this stress is to prepare yourself, and your Estate, for the future. Review the steps of probate and get a better idea of how these court proceedings are handled. Then, think about creating your own Estate Plan to help protect your loved ones from the many challenges of probate.