In legal terms, probate refers to the formal court process in which a person’s assets are to be distributed upon their death, according to their will. This probate process involves a series of filings and hearings that are presided over by a probate judge, and generally involves:
- Determining and proving the validity of the decedent’s will;
- Submitting an inventory and appraisal of the decedent’s estate;
- Ensuring that all of the estate’s taxes and debts are paid off; and
- Ensuring that all of the estate assets are distributed, either according to the decedent’s will, or in accordance with the intestacy laws of their state.
Generally speaking, an estate’s executor is the person that is responsible for initiating the probate process, as well as distributing the assets to the beneficiaries. If the named executor fails to initiate the probate process any party that has an interest in the estate may initiate the probate process. Interested parties can include any party who could gain from the will, such as a creditor or beneficiary. If no executor was named in the will, or if the named executor is unavailable to fulfill the role for whatever reason, the court will then appoint an executor of their own to oversee the probate process.
It is important to note that the probate process differs from state to state. Most states have adopted the Uniform Probate Code (“UPC”), which was established with the goal of streamlining the probate process. This is done by making probate administration simpler, as well as less expensive. States that have utilized the UPC generally do so in order to standardize the probate process across state lines.
Additionally, some states allow for a more simple probate process for smaller estates. Generally speaking, a smaller estate is one that has a total property value of less than $100,000. However, what would constitute a small estate largely depends on state law. Your state may allow you to skip the entire probate process if your estate meets certain requirements that they have set forth.
What Is Informal Probate?
Informal probate may also be referred to as informal probate of a will. This is another type of procedure that is used to determine the distribution of a person’s property after they have died. Unlike formal probate proceedings, there are no federal laws which govern the informal probate process. Alternatively, the informal probate process involves laws that are created and enforced individually by each state.
Additionally, the informal probate process is not associated with as much court intervention when compared to the other probate procedures, such as formal or supervised probate. During the informal probate process, the probate court will appoint an executor or supervisor who will be responsible for managing and distributing the decedent’s estate. As previously mentioned, a specific estate executor is generally named in the testator’s will, but they may also be selected by the court if no one was named or if other reasons present themselves.
The estate executor may then distribute the estate property and assets directly to the entitled beneficiaries, without needing to first seek court approval. However, an executor should still follow the requirements and terms that are set out by the decedent’s will.
Additionally, it is important to note that informal probate procedures may not be available in every state. When informal probate procedures are available, the laws can vary dramatically depending on whether there is a valid will in place or not.
Is The Informal Probate Process Preferred Over The Formal Probate Process?
Whether you should choose informal versus formal probate will depend on the facts and circumstances surrounding the specific testator’s estate.
An example of this would be how if the person’s will was created using clear language, meaning that there is little to no room for will contests or disputes, then an informal probate process may be more preferable. This is due to the fact that having less court intervention can often make the process move more quickly and efficiently; and, it is also generally less costly than having to go to court for formal probate.
In contrast, if there are any questions or disputes associated with the provisions made in the will, it would most likely be preferable to choose a different type of probate process. An example of this would be formal or supervised probate. During these types of probate procedures, the court can intervene in order to provide guidance if there are any ambiguities contained within the will and are causing disputes among the parties involved.
One of the cons associated with the probate process in general would be the lack of privacy. This is because estate distribution is public information. If you as an estate owner would like the matter to be handled privately, you will need to set up your estate distribution in such a way that avoids probate altogether, such as distribution through various trusts.
What Are The Requirements For Informal Probate Of A Will?
To reiterate, the probate process, whether formal or informal, can vary greatly from state to state. However, there are some general requirements that govern the informal probate process. First of all, all interested parties must file an application with the probate court, which requests that the estate be assigned to an informal probate proceeding.
Next, the parties may also need to provide various sources of information in order to facilitate the process. Some examples of such information includes, but may not be limited to:
- Proof of whether the decedent had a will;
- If so, the original will or in certain circumstances a copy of the will;
- A verified copy of the decedent’s death certificate;
- A list of the potential recipients of the estate property, heirs, and any other interested parties; and
- A catalog of the decedent’s estate property, assets, and any outstanding debts.
As you can see, this information mirrors the steps of the probate process. Additionally, there may be differing timelines and deadlines associated with filing a request for informal probate. An example of this would be how if too much time has passed between the testator’s death and filing the necessary paperwork, then the option for informal probate may no longer be available. In cases such as these, the estate will simply pass through the standard state probate procedures.
Finally, it is important to review or have a lawyer review applicable local laws associated with the informal probate matter. As previously mentioned, each state has enacted its own unique set of laws intended to govern and address these types of proceedings. Because of this, there may be additional or alternative requirements to fulfill depending on the jurisdiction.
An example of this would be how Arizona only permits specific people to file the petition forms for informal probate. These people include:
- The decedent’s spouse;
- Adult child; and/or
- A parent, among a few others.
In contrast, Colorado only permits a clearly identified and qualified individual to file on behalf of the deceased testator. An example of a clearly identified and qualified individual would be the personal representative.
Do I Need An Attorney For Informal Probate Procedures?
Although it is not generally necessary to hire a lawyer for an informal probate proceeding, you should consult with an experienced and local probate lawyer when dealing with informal probate procedures. An attorney will be best suited to helping you understand your rights and legal options according to your specific state’s laws.
A probate attorney can also assist you with completing the necessary forms, filing the proper documents, appointing an executor, and determining how to distribute the property. Additionally, your lawyer will also be able to represent you in court, as needed, should any disputes or contests arise.