Probate

Probate refers to the court process by which property belonging to a deceased person is legally transferred to another through a will. If there is no will, the probate court determines the legal heirs to the property. This process of transferring property is referred to as probating a will or estate.

One responsibility of the probate court when transferring property is to ensure that the deceased person’s property goes to the correct beneficiary. The court also ensures that taxes are paid before the property is transferred and provides a process for the deceased person’s creditors to make claims on the estate before the heirs are paid. Any claims not properly filed against the estate during the probate process are discharged and may not be collected thereafter. The probate process can take six months to one year or more.

Most states allow small estates to pass through probate in a simplified process that is less expensive and less time-consuming.

A probate matter may be contested or uncontested. The probate court gives parties named in the will and parties who stand to inherit from the testator if the will is found invalid the opportunity to object to a will if:

• They believe they did not receive their fair share.
• The deceased did not have the capacity to make the will.
• Another will was executed after the will was introduced into probate.
• The will was forged.
• The deceased was coerced into making the will.

Probating an estate

An executor is someone named in a will and approved by the court to handle the settlement of an estate. If an executor is not named in a will, the court will appoint one. Executors typically are family members or close friends of the deceased. An attorney’s role in the probate process is to assist the executor with his or her duties, take care of the necessary court filings and handle legal disputes. An executor has the following duties:

• Notify potential heirs of the will and give them the opportunity to contest the will. Notice typically is made by registered mail and by notice published several times in a local newspaper approved by the court.
• Petition the court requesting access to any safe deposit box. The box may be opened in the presence of a bank employee, and the items in the box will be inventoried.
• Make a list of assets to be distributed.
• Depending on the assets and distribution requirements of the estate, some items could need to be appraised.
• Determine and notify potential creditors by collecting bills mailed to the deceased and examining the deceased’s important papers.
• Provide known creditors notice of the probate case by mail and also publish notice in a local newspaper. The latter is intended to reach unknown creditors and give them an opportunity to make a claim against the estate.
• Make a list of debts and taxes to be paid.
• Settle disputes regarding debts, taxes and claims brought by heirs.
• Prepare an accounting of assets, debts, taxes and the remaining assets available to heirs, including the amount to be paid to each heir.
• Pay debts and taxes.
• Distribute assets.

Assets that do not pass through probate

Assets that pass by contract, such as property held jointly with rights of survivorship, revocable trusts, gifts, payable-on-death bank accounts and life insurance proceeds, do not pass through the will and therefore do not go through probate. These assets pass automatically to the beneficiary named in the contract. The probate court has jurisdiction over non-contractual items such as land, cash, vehicles, furniture and personal property.

Avoiding probate

All wills go through the probate court. One way a person can avoid probate is to create a trust, which transfers assets upon death. When death occurs, the named trustee transfers ownership to the beneficiaries named in the trust. The trustee has similar responsibilities of a will executor and is required to pay bills and taxes before distributing assets. The process can take a few weeks and does not incur court or attorney fees. Once the property has been transferred to the beneficiary, the trust automatically ends.

Other ways to avoid probate are to create payable-on-death accounts and joint ownerships in property. For example, a bank account can be turned into a payable-on-death account, which causes the money in the account to go to the named beneficiary upon death. Payable-on-death accounts usually are created with a simple form. Additionally, forming joint ownerships in property, like a joint tenancy with right of survivorship, will cause the property to go to the co-owner upon the other owner’s death.

Pour-over wills

A pour-over will ensures that any property not named in the trust (because it was acquired after the trust or not properly owned by the trust) will pass to the beneficiaries chosen by the executor. The pour-over will must be administered through the probate court, although the process is simpler, less costly and less time-consuming than wills in which the entire estate passes through the will.

Last updated on: Oct. 1, 2008