Probate FAQ

When a person dies, their last will and testament (assuming they prepared one in advance) is handled and their wishes for the distribution of their personal property implemented through a process called probate. Probate simply means the procedure by which their last written directives are legally certified as the final statement of their wishes regarding their worldly possessions (including any property or properties they may have owned). It also confirms the appointment of a person or entity the deceased person selected to administer their estate. The term probate is also frequently used to refer to the entire process of "probating" an estate. In this usage, it refers to the entire process that gathers all available assets, pays any outstanding debts, taxes, administrative expenses and then finally makes the specified distribution of remaining assets to those persons or entities designated by the will.

A probate court, which is sometimes referred to as a surrogate court, is a specialized court and legal process that deals with matters pertaining to the probate and the administration of the estate of deceased persons. These specialized courts ascertain and oversee that proper administration and distribution of the assets of a decedent (one who has died), determine and certify the validity of wills, enforce the provisions of a valid will (by issuing the grant of probate), prevent improper action or malfeasance by executors and administrators of estates, and provide for the equitable distribution of the assets of persons who die intestate (without a valid will).

The Personal Representative, also known as the Executor (if the personal representative is a male) or Executrix (if the personal representative is a female) is the person who is designated by the will of the person who has died to administer their estate and handle the distribution of its assets to those entities designated by the provisions of the will. Unless there is some valid objection or the person designated refuses to serve in that capacity, the probate judge will appoint the person who is named in the will to serve as the personal representative.

Joint tenants (or tenancy) with the right of survivorship (JTWROS) is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owners dies.

This term refers to a person who has died and left a "Last Will and Testament" that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.

This term refers to a person who has died and did not leave a "Last Will and Testament." In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.

A codicil is a document, attachment or rider that is added to an existing will that modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.

While the process can vary from state to state and is often subject to outside factors that can certainly change it, the process generally involves: delivering an original copy of the will to the local probate court, publishing a notice of the Petition for Probate, filing a formal petition with the court to probate the estate, allowing creditors to file claims, gathering and securing the assets of the estate, paying debts and taxes, and finally distributing the remaining assets to the heirs and beneficiaries.

The duration of the probate process is subject to lots of different variables, but a general rule of thumb is approximately six months. However, it can and frequently does takes far longer. Issues such as locating heirs, will contests, unsettled claims, or difficult-to-sell real estate can cause delays.

There are many reasons for probate, but some of the most important are: transferring the legal title/ownership of the decedent's property and assets to the heirs and/or beneficiaries, collecting any taxes due to various taxing authorities, providing a legally mandated deadline for creditors to file claims against the estate, and providing a legal method for the actual physical distribution of the remainder of the estate's property to the heirs and beneficiaries.

Not necessarily. Many states allow some types of property to pass to certain beneficiaries free of probate. Usually, real and personal property owned under "joint tenancy with rights of survivorship" passes to the surviving co-owner(s) without a requirement for probate. Other types of benefits, such as life insurance policies, annuities, IRAs, and 401(k) accounts payable directly to a named beneficiary can often be tendered without probate.

The cost of probate may be set by state law or by practice and custom in your community. When all the costs are added up – including appraisal costs, executor's fees, court costs, surety bonds, plus legal and accounting fees – probate can easily cost from 3% to 7% of the total estate value, and more. If there is a "Will contest" all bets are off.

Possibly. In some states, there are processes often referred to as "simplified procedures" that are used for estates whose value is below certain financial thresholds. This is certainly a matter to consult with an attorney about, but if there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable.

Typically, the person named as the deceased's Personal Representative goes to an attorney experienced in probate matters, who prepares a "Petition" for the court and files it, along with the Will, with the probate court. If no objections are received, and everything seems in order, the court approves the petition, appoints the Personal representative, orders that taxes and creditors be paid, and requires the Personal Representative to file reports with the court to assure all the deceased's property is accounted for and distributed in accordance with the terms and conditions of the Will.

The appropriate court in the State and County where the deceased permanently resided at the time of his or her death is usually the court where the probate is processed.

While there is usually no legal requirement to use a probate lawyer, probate is a rather formalistic procedure. One minor omission or missed deadline can cause everything to come to a grinding halt or expose everyone to liability. Thus, it generally is a very good idea to "let a lawyer do it".

Usually, the laws of the state in which the deceased was last a permanent resident prevail regarding governance of probate issues. If the decedent owned out-of-state real property, the laws of the other state can govern who inherits it if there is no will. If a will exists, it usually must be submitted to probate in the other state(s) of jurisdiction in which the deceased owned real property. That additional probate filing is formally referred to as "ancillary probate".

If there is a will, the Personal Representative (sometimes referred to as the "executor" or "executrix") is usually responsible. If there is no will, an "administrator" is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate through the proceeding.

The main tasks include determining if there are probate assets; gathering and inventorying assets; receiving payments due the estate; setting up an estate checking account; figuring out distributions; valuing assets; giving legal notice to creditors; investigating claims; paying bills, debts, and taxes; and distributing the remaining property in accordance with the Will.

No. It is always your option to serve or decline. Even if you agree to serve you can resign later. If you decline to serve, any alternate named in the will is typically appointed by the court. If none is named, the court will appoint someone.

It is not a requirement, but usually they are compensated. Typically, a personal representative earns a fee of +/- 2% of the total value of the estate for their work, though this varies by state and diminishes as the size of the estate increases. All funds paid are subject to approval by the probate court.

An executor or administrator who is derelict in his or her duty is personally liable for damages caused in the administration of the estate. This means that the Personal Representative might wind up paying for the loss out of his or her own pocket.

If someone files an objection to the Will or produces another Will, a "Will contest" has begun. They can be extraordinarily costly and create incredible delays. To contest a will, a person must have "standing" to mount a contest, such as a child who was cut out of the will.

Typical objections include: the Will was not properly drawn, signed or witnessed; the decedent lacked mental capacity at the time the Will was executed; there was fraud, force or undue influence; or the Will was a forgery.

A "contest" is usually mounted by the filing of the necessary documents with the probate court by an heir, prospective heir or another beneficiary. To successfully challenge a will, there must be sufficient evidence that the will was not created properly.

If a person dies without a Will (known as dying "intestate"), the probate court appoints a Personal Representative frequently called an "Administrator" to receive all claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of the state.

The Will may be missing because the deceased intentionally revoked it, in which case an earlier Will or the state's rules on intestate succession would determine who gets the deceased's estate. Alternatively, if it can be proven the Will was destroyed accidentally, the probate court may accept a photocopy.

The first place to check is with the probate court in the County of the State where the deceased lived. In almost every case the Will, if filed, will be available to the public.

One approach to reduce or eliminate the need for probate is through the use of a Living Trust that holds legal title to some or all of your property at the time of your death. The Trust is a legal entity which survives you after your death.

Creditors are notified of the death as part of the probate process. Once notified, creditors have a fixed period of time to file any claims against the estate. If the claim is approved, the bill is usually paid out of the estate.

Generally not. Unless the deceased had gifted away his or her assets to someone shortly before dying, or otherwise acted in concert with them to defraud his or her creditors, beneficiaries should not have any liability to the deceased's creditors just because they are beneficiaries.

Death triggers two events: it ends the decedent's last tax year, and it establishes a new, separate entity for tax purposes, the "estate." The executor may need to file final income tax returns, fiduciary income tax returns for the estate, and possibly estate or gift tax returns.

Of course. A will can be modified with an addendum, often referred to as a codicil or replaced by a completely new will, as long as the person making the change is competent.

Often they are, but a court is not bound by these provisions and might overrule them if there was a specific reason to do so. However, the wishes of the person making the will always be given first consideration.

In general, yes. A judge can void all or part of a will. You cannot change the effects of law just by stating your wishes in your will. For example, you may not suspend or terminate any legal rights or claims that a spouse or child may rightfully have.

You could do so by appointing co-representatives. However, this could cause problems during probate if there is a disagreement. Normally, one representative is all that is needed.

It depends on the laws of the state, but usually isn't an absolute requirement, though it is usually easier – especially regarding larger estates and real estate.

Joint tenancy with right of survivorship (JTWROS) doesn't replace a will, but if one of the owners dies, the other becomes the sole owner of the property. This means that the real estate isn't part of the decedent's estate, and therefore, is not subject to probate.

Generally this is a movie scenario and not done in real life. Usually, the personal representative provides notice of probate to all interested parties and they can obtain a copy of the will from the probate court.

If this is allowable in the state in question, the benefit of doing so is that the list can be changed from time to time as opposed to changing or adding codicils to the will.

While each state may impose additional requirements, in general, a valid will must be hand-written or printed and signed by the person who has created it, and usually witnessed by two (or more) disinterested persons.

The laws of each state usually provide a "default will" distributing property to relatives, typically starting with the spouse and children.

The simple answer is immediately. Making a will represents doing the "right thing" today for those you love, and you should occasionally review your will to make sure it continues to represent your final wishes.

If you do not do it yourself, only an attorney can legally draft a will for you. Be aware that personally drafted wills are often incomplete and therefore some or all of such will can be held to be invalid under state laws.