Probate is a legal process that ensures that a deceased person’s debts (including liens and taxes) are paid and that the remaining assets are distributed according to the person’s will, or if no will exists, according to the laws of intestacy. In some states, any estate valued over $3,000 must be probated; in other states, probate does not occur until the value is higher, sometimes as high as $200,000.
Executor’s Role
When a deceased person has established documentation with instructions on how assets should be distributed upon their death and has appointed an executor, the probate court serves as an approval and supervision process for the will and the will’s executor.
For the executor, the probate process includes:
- Submitting a death certificate
- Presenting the will
- Filing a petition to start the probate process
- Receiving authorization from the court that the probate is approved
At this time, the court grants permission to administer the estate. Once the executor has paid all debts, including taxes, and distributed assets to beneficiaries, they can petition the court to close out the estate.
If the deceased doesn’t leave a will, the probate court appoints an administrator to oversee the estate and act as executor. The court-appointed executor will receive legal claims against the estate, pay off outstanding debts, and distribute the remaining assets. To distribute the assets, the administrator must locate any legal heirs, such as surviving spouses, children, and parents. Probate determines what assets need to be distributed and have ownership reassigned. This process is particularly important for assets such as real estate or land.
Certain assets bypass probate and transfer directly to heirs.
These include assets with a named beneficiary, such as:
- retirement accounts
- jointly owned property
- bank and investment accounts with a named beneficiary
- assets in a living trust
If there are disputes about assets, the administration of the estate, or the validity of the will, the probate court judge will settle the disagreements. Any of these disagreements can lead to a will being contested in court. Conflicts among family members may also lead to a probate hearing.
Consider the dollars and cents
How much does probate cost? Some states charge a flat fee or an hourly fee for a lawyer to process an estate. Others charge a percentage of the estate. There will be court fees, filing fees, and the cost of notifying creditors. And inheritance tax may have to be paid.
You may want to research probate costs in your state when you begin end-of-life planning.
Probate is often seen as a scary or complicated process, but it’s an important step in honoring the deceased’s wishes. All states have rules and procedures particular to the state, so it is best to consult an attorney to determine whether probate will be necessary, how to plan for it, or how you might avoid it.
Contact us today if you need assistance with a new Probate or would like to avoid it altogether by creating a comprehensive estate plan.
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