Probate is the court supervised process for transferring a decedent’s estate to the beneficiaries named in the will. The probating of an estate can happen in several different factual scenarios. The first is intestate where there is no will or trust. The second is where there is a will but the will does not meet the statutory requirements. The third is where there is a trust and then there is a trust contest.
There are many steps in the probate process. Below is a summary of some of these steps in probate. The court appoints a person to assess and value all of the assets in addition to being responsible for paying any debts. This person is normally referred to as an administrator or executor. The next step is to collect all of the assets with the purpose of having all of the assets appraised and inventoried. In addition, debts and taxes need to be paid from the assets. The executor or administrator will then distribute the remainder of the assets according to the wishes of the testator as set forth in either a witnessed will, holographic will, statutory will or international will or by intestate succession if there is no valid will. The executor then petitions the court to obtain an order [decree] of distribution. Once this court order is obtained, then the payments may be made and all assets transferred or liquidated as appropriate. Once this distribution is made, the a receipt for these assets are filed with the court from each beneficiary.
To begin the probate process, it is necessary to file a petition in the probate court. This is filed in the county where the deceased person lived at the time of death. The filing of the petition will have set a hearing normally within 30 days from date of filing. If there is an emergency, a Special Administrator can be appointed sooner and this is used for business' which need to be kept operational and for other immediate needs.
This petition must be mailed at least 15 days prior to the hearing to all of the testator's heirs [those who would inherit if died without a will per intestate succession] and any beneficiaries listed. In addition, notice is also given to any other alternate executors in the will. This is a mandatory requirement and the attorney needs to make sure all of the relatives are named and noticed.
There is also the requirement of the posting of a bond if the will does not waive a surety bond. This is necessary to insure that the assets of the estate are disposed in accordance with the law and any court orders. There are many bonding companies and the costs can range from hundreds of dollars to thousands of dollars depending on the size of the estate.
There is liability and legal exposure if the above steps are not complied with fully under the law. Some assets are subject to probate while others are not. In addition, there may be restrictions for accounts and funds. In some cases, court approval is required for terms of the sale of personal or real property. Probate can be a lengthy, complicated and confusing experience for those not knowledgeable about the law and the process in the local courts. Depending on the size and nature of the assets and debts, the probate process can take from six months to more than two years. There are numerous documents and forms which need to be filed with the court.
Probate courts oversee the administration of property after death, guardianships of minors and conservatorship of incapacitated adults. Our firm's attorneys are experienced in all areas of probate law and we encourage you to contact us for a complimentary and confidential in-house consultation. Transferring real property upon the death of the testator can be very complicated. If someone close to you has recently passed away, we strongly encourage you to have one of our probate attorneys handle the outstanding legal matters on your behalf so that you can focus on taking care of your family during this time of loss.