The term probate is used to describe the legal process in which a decedent’s estate is distributed to their heirs and designated beneficiaries. Additionally, any debt that is owed to creditors by the decedent is paid off, utilizing funds left behind by the decedent.
This is typically done in accordance with the decedent’s last will and testament; if one does not exist, the property will be distributed according to state laws.
During the probate process, the probate court will determine whether a will is valid. The court will also oversee the distribution of assets to specified individuals and beneficiaries, pay out any death taxes, and pay probate costs. These can include as attorneys’ fees, court fees, executor fees, and any additional administrative costs.
Probate typically proceeds in the following order:
- If the decedent has left a will, the administrator is generally named as the executor. If there is not a will, the probate court will appoint someone to the roll of executor;
- The will must be proven as valid in court. Each state has their own set of laws as to what constitutes a valid will;
- The decedent’s property is identified and appraised; however, most assets cannot be sold or distributed until the entire probate process has reached completion;
- All debts and/or taxes owed by the decedent are paid; and
- The remaining assets are distributed in accordance with the decedent’s will, or in accordance with state laws if there was no will.
As previously mentioned, probate laws vary from state to state. Some states do not require an estate to enter the probate process upon someone’s death, while others do. The probate process can be lengthy, and the absence of prior estate planning can complicate the process and add to the amount of time probate takes.
The length of time the probate process will take varies greatly. Some determining factors include the type of probate being utilized, the complexity of the estate, the filing of taxes, and if an experienced attorney is involved. Further, every state has their own set of criteria. In some states, it could take one to three years. In others, it could only take a few months.
Below is a brief summary of the timing for some state probate courts:
- California: California probate procedures can be relatively complex, but there is a simplified process for smaller estates. Probate is required for estates that exceed $150,000. The process can be concluded in about eight months; however, because of crowded probate courts, the initial hearings could be delayed for up to six weeks once the petition has been filed;
- Florida: Florida probate law law states that, regardless of the size of the estate in question, a person who is holding the will of the decedent must initiate the probate process within ten days upon learning of the person’s death. The average probate process will take roughly six months;
- Texas: Texans may be able to avoid probate altogether. For example, some assets can be transferred from the decedent to the new owner, such as proceeds from a life insurance insurance policy, or joint tenancy property. When probate is necessary, the process could take years, as the will must be submitted for probate within four years following death. The executor must notify beneficiaries of the impending probate with sixty days, and file a statement with the court within ninety days that they have been notified. The inventory of claims and assets must be completed ninety days after the executor is appointed. Beneficiaries usually get their payouts in four to eight months;
- Illinois: In Illinois, formal proof of the will must be provided within forty-two days, but there are six months to contest the will. A typical Illinois probate will run from six to twelve months; and
- Massachusetts: Massachusetts probate is mostly completed in nine months, with the entire process lasting one to two years. An executor is generally appointed within eight to twelve weeks.
Probate can take several years if the will is contested, if the will is not found to be valid, or if there is no will at all. It is very important that proper estate planning be utilized in order to minimize the amount time spent in probate.
A creditor must file a claim for payment. From there, the executor of the estate will determine whether the claim is valid by reviewing the decedent’s financial records, loan documents, checking accounts, bank statements, and tax returns. Once this has been completed, the executor provides notice to the creditor(s).
There are a few ways of doing this, but the most common way is to directly request the creditor present a claim against the estate. Once again, each state has its own set of laws in place to govern this process.
In Texas, a creditor’s claim must be accepted or rejected within thirty days. New York has a strict statute of limitations, which requires creditors to make their claims within seven months or else entirely forfeit the money owed. In California, creditors must submit their claims within four months while Illinois allows for six months. And in Massachusetts, creditors have one full year in which to submit their claim.
A skilled and knowledgeable probate attorney will make the probate process easier and run much more smoothly. Timing is incredibly important, and state laws vary widely. A probate attorney can help you understand your state’s laws, and will ensure all deadlines are met. Intestate estates and contested wills could especially benefit from the assistance of an experienced probate attorney.