Probate FAQ

If you and your family are going through the process of probate, then there are probably many questions going through your mind. The probate process can be extremely complex, especially for larger estates that have multiple properties and bank accounts. One of the first issues that you may face is determining which probate attorney should represent you. A good lawyer should be able to help you easily navigate through the court system by explaining relevant laws and keeping you well-informed. For answers to some of the commonly asked questions, please see below.

What is probate?

After a person's death, probate is the process of transferring the decedent's assets to any beneficiaries or heirs. This is done legally in a court by proving the validity of the deceased person's will or following the laws of the state to distribute property for those who did not create a will. In both situations, an executor will be appointed to oversee the process.

What are an executor's duties?

The courts appoint an executor to either follow the provisions of a will or make decisions for the decedent when no will can be found. The executor has a number of different responsibilities, all of which will be closely monitored by the courts. First, the executor, also known as the personal representative, needs to identify all the decedent's assets, and determine which of those are subject to probate. After this is done, the executor should then value the assets of the estate, including any unpaid debts from other persons or entities.

The representative should then set up a checking account, and pay all debts, bills, taxes, and valid claims against the estate. Before paying anything, the executor needs to do some research to verify that the claims are legal. When all debts are paid out, the executor should then determine who should get the remaining property, and distribute it to the proper persons.

If the executor should fail to rightfully carry out the duties, then they will be responsible for any damages incurred. This could include failing to collect payments or overpaying a claimant, inappropriately managing the estate's property, or distributing assets to the wrong beneficiary. The representative could even end up paying the damages from his or her personal funds.

How long is the probate process?

Generally, the probate process takes a few months to a year. It can take longer, depending on the estate's size, the length of time to find any existing will, as well as the length of time taken to appoint an executor and notify any beneficiaries of the decedent. If a family member or beneficiary wants to contest the will, then the probate process will continue until all matters are resolved. This could take years to settle.

What is probate litigation?

Probate litigation is essentially a will contest. If an heir or beneficiary does not agree will the validity of a will, then they might dispute the will through probate litigation. There are many reasons to do this including undue influence on the decedent, failure of a beneficiary to do his or her duties, lack of creditor disclosure, disputes over the executor, lack of inventory, among others. It is important to note that a will cannot be contested after a certain date, so find legal help as soon as possible so your case will not surpass any state time limits.

How much will probate cost?

Probate fees can vary depending on your state and the attorney you choose. They will most likely charge you based on the size of your estate and the amount of time that it takes to settle the will. Most fees end up costing around 5% of the estate's worth.

Where does the probate process occur?

Probate usually takes place in the probate court that has jurisdiction over the decedent's residence. Some states or counties do not have a court specifically for probate, so it will then take place in the court that the state designated to handle probate cases. To see which court will be handing your probate case, visit our "Probate Courts by State" page.

How can I avoid probate?

While most wills require probate to establish their validity, there are some ways to avoid the probate process. One option is to create a living trust, which protects property and asset from the probate estate. When you appoint a beneficiary in a living trust, the property is no longer yours in the eyes of the state, but the beneficiary's property. In the event of your death, the property can be easily passed on to the heir. Trusts can also protect your assets from creditors as well as minimize taxes and probate costs.

Another option would be to appoint a joint owner of your property. If one owner dies, then the property will automatically go to the other owner without any probate. There are a few different types of joint ownership: joint tenancy with right of survivorship, tenancy by entirety, community property with right of survivorship. Talk to your attorney to see which type is best for your situation.

Other option could include gifting property while you are still living, or taking advantage of a simplified procedure for a small estate. You could also create pay-on-death accounts, which would immediately transfer your assets or property when you die.

Should I create a will or trust?

A will is a document stating the writer's wishes in regards to their estate after they die. A trust can be set up to replace or supplement a will. The grantor (property owner) transfers legal ownership of their property or part of their property to an individual or organization to hold in trust for the beneficiaries. To find our which option is best for you, talk to a probate attorney or read through the other pages on our information center.