Probate is the legal process where the deceased’s will is proven and their estate is administered to the proper parties. The probate court determines and appoints an executor, also called an administrator if there is no will, of the estate. The estate is comprised of the deceased’s personal belongings and property. An executor is the person responsible for distributing particulars from the estate to the beneficiaries: the people that receive the items mentioned in a will.
When a person dies without a will, their belongings go to their next of kin, a described by the law of intestate succession. This law varies from state to state and it’s essentially a state-created will for the deceased and their family. There is also something called the surviving spouse’s elective share, where a surviving spouse is entitled to part of the estate, whether they have a will or not.
How to Start Probate the Process?
A family member or designator of a will must first file a petition for probate with a probate court, but it’s important to note that the probate process costs money. Common probate fees include:
- Filing fees
- Executor fees: Executors can claim statutory fees for services from the probate process, but how much they’ll get paid varies greatly by state.
- Attorney fees: Like executor fees, attorney fees are dictated by the state.
- Accounting fees: Accounting fees are necessary if an estate is taxable.
- Appraisal fees: This depends on the property involved after a death. Items like jewelry and property need to be appraised.
- Bond fees: These fees are based on the estate’s value.
- Miscellaneous fees
To start the probate process, someone will need to present a death certificate to the court. If there is a will, that also needs to be validated in court. The validity of the will can be questioned by any party. An executor is also chosen for administrative work during the process.
During the Process:
- The executor posts bond for the estate. Bond is essentially an insurance policy ensuring that each beneficiary receives exactly and only what they’re entitled to.
- After posting bond, notices to the beneficiaries, relatives, and creditors, needs to be sent.
- Next, the executor must have property appraised. An inventory of all the deceased’s belongings and their values needs to be created.
- After that, the executor needs to use the estate to pay off any necessary expenses and debts like taxes or hospital debts. If debts aren’t paid off, creditors can approach the beneficiaries to pay off outstanding balances.
- Whatever is left after debts are paid get to be distributed to beneficiaries. All real estate deeds need to be transferred according to their will, but, again, if there is no will, the probate judge will decide how to distribute assets from the estate.
How long until an estate closes?
If the deceased had a will, probate can take months, and if they don’t, it can take years. Probate is a complex process dependent on how many assets the deceased had, who might have claims to those assets, and whether a proper will was created. Wills need to be formally witnessed and signed; otherwise, they aren’t legally valid.
Ultimately, if you’re unsure of how to start probate, it’s best to contact an attorney for legal advice and guidance.
*Please note, that this article is meant for informational purposes only and is not intended as legal advice.