The term probate refers to the legal process in which a person’s assets are to be distributed upon their death, in accordance to their will. The probate process involves a series of filings and hearings that are presided over by a probate judge. The probate process typically involves the following:
- Determining and proving the validity of the decedent’s (deceased person’s) will;
- Submitting an inventory and appraisal of the decedent’s property;
- Ensuring all of the estate’s taxes and debts are paid; and
- Ensuring that all of the estate assets are distributed either according to the decedent’s will, or in accordance to the intestacy laws of the state.
In general, the estate executor is the person that is responsible for initiating the probate process, and distributing the assets to the beneficiaries. If the named executor fails to initiate the probate process, then any party that has an interest in the estate may initiate the probate process.
Interested parties include any party who could gain from the will, such as a creditor or beneficiary. If there was no executor named in the will, or if the named executor is unavailable, the court will then appoint an executor to oversee the probate process.
How Does the Probate Process Vary From State to State?
It is important to note that the probate process differs from state to state. Most states have adopted the Uniform Probate Code (“UPC”). The UPC was established with the goal of streamlining the probate process, by making probate administration simpler and less expensive. The States that have utilized the UPC typically do so in order to standardize the probate process across state lines.
Some states allow for a more simple probate process for smaller estates. Typically a smaller estate is an estate that has a total property value of less than $100,000. However, what is considered to be a small estate depends on state law. Your state may allow you to skip the entire probate process if your estate meets certain requirements.
For example, in Texas a Small Estate Affidavit may be filed to transfer property to a decedent’s heirs if the value of the estate, not including the homestead property or other exempt property, is less than $75,000.00. As of January 1, 2020 California probate courts allow a decedent to transfer assets to their heirs, and avoid a formal probate proceeding, if the total value of their estate is less than $166,250.00.
Below is a table that outlines the top 10 most populous state’s laws concerning estates that are able to avoid the probate process altogether, or avoid the part of the probate process:
As can be seen, there are numerous differences between states as to when the probate process may be avoided. In addition to avoiding probate, the entire probate process itself greatly differs depending on the state in which you reside. Further,the probate costs also differ depending on which state you reside in. Therefore, it is important to first research your local laws concerning probate, before filing for probate.
Do I Need an Attorney for the Probate Process?
If you need to file for probate, it is important that you understand your local laws concerning the probate process. It is in your best interests to consult a well qualified and knowledgeable probate attorney in your area.
An experienced probate attorney will be able to help you determine if you can avoid the probate process, or qualify for a simplified probate. Additionally, an attorney can help you gather and file all the necessary paperwork for the probate process. Finally, an attorney can represent your interests in court, should a legal dispute arise during the probate process.