Probate is a legal process by which an individual’s assets are distributed upon their death, in accordance with their will. The probate process includes a series of filings and hearings which a probate judge presides over.
The probate process usually includes the following steps:
- Determining and proving the validity of the decedent’s, or deceased individual’s, will;
- Submission of an inventory and appraisal of the property of the decedent;
- Ensuring all of the taxes and debts of the estate are paid; 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 the state.
Generally, the executor of the estate is the individual who is responsible for initiating the probate process as well as distributing the assets to the beneficiaries. If the executor who is named fails to initiate that probate process, then any party who has an interest in the estate may initiate the probate process.
An interested party may be an individual who would gain from the will, such as a beneficiary or a creditor. If an executor was not named in the will, or if the executor who was named is not available, the court would appoint an executor to oversee the probate process.
It is important to be aware that the probate process may vary by state. In certain states, there is a simple probate process for smaller estates, which are usually considered estates with a total property value of less than $100,000.
What is considered to be a small estate, however, will vary by state law. An individual’s state may allow them to skip the probate process if their estate meets certain requirements.
What is the Uniform Probate Code?
The Uniform Probate Code (UPC) is a body of model laws that were drafted and reviewed by a group of national experts. The UPC specifically addresses issues that are related to:
The goal of the creation of the UPC was to streamline the probate process and make estate and probate administration simpler and less expensive in general. Several states have adopted the UPC to attempt to standardize the estate administration process across state lines and to keep the procedure as simple as possible for the individuals involved.
Why is the UPC Important?
The UPC provides specific details and instructions regarding the different types of probate as well as the rights of the surviving spouse. Pursuant to the UPC, there are three types of probate, including:
- Informal probate;
- Unsupervised formal probate; and
- Supervised formal probate.
In general, probate in states which have adopted the UPC will fall into the first category, informal probate. This type of probate is common in cases when a deceased individual leaves behind a will and all of their heirs are in agreement and get along.
In these cases, the process is usually just paperwork and does not require a court hearing. Although there are certain requirements for informal probate, such as providing written notice of probate to creditors, beneficiaries, and heirs, this form of probate is the simplest and easiest available. However, if an individual wishes to contest the probate proceeding, then informal probate cannot be used.
Pursuant to the UPC, unsupervised formal probate is a traditional court proceeding and, in general, mirrors probate in other states. This is a lengthy process and is more expensive than informal probate.
This is mostly because there is a high likelihood of a disagreement arising among family members or creditors. Similar to probate matters in a state which does not recognize the UPC, an individual must be appointed as a personal representative, or executor, of the estate.
Notice must be provided to interested individuals, which includes beneficiaries under the will as well as any creditors which may be owed money. In many cases, there will be a hearing or hearings to determine who the interested parties are. The representative of the estate must get the permission of the court prior to selling or distributing the property of the estate if the distribution is not included in the will.
Supervised formal probate is used only in cases where a court determines it is absolutely necessary. Typically, this process is deemed necessary when a beneficiary cannot look out for their own interests.
For example, when a beneficiary is a minor or is mentally incapacitated. The process of supervised formal probate is similar to the process for unsupervised formal probate.
The court, however, may require the personal representative of the estate to take all necessary actions to safeguard the assets of the estate as well as ensure that the property is distributed to the correct individual. In certain cases, a court may require a physical inspection of the assets of the estate or may require the representative to make periodic accountings of how the assets have been distributed or used.
Similar to unsupervised formal probate, a court may require that the representative of the estate obtain court approval prior to distributing any property.
What are the Rights of Surviving Spouses Under the UPC?
The UPC specifies the rights which a surviving spouse has when their spouse passes away intestate, meaning that they passed away without having a will in place. If a spouse passes away intestate, their property will be distributed as follows:
- If the deceased is not survived by any parents, children, or grandchildren, the surviving spouse will inherit the entire estate;
- If a parent of the deceased spouse survives, the surviving spouse will inherit the first $50,000 of the estate, and then the remainder of the estate will be split with the deceased spouse’s parent(s); and
- If a child or grandchild of the deceased spouse survives, then the surviving spouse will inherit the first $50,000 of the estate and split the remainder of the estate with the surviving children or grandchildren.
What States Follow the Uniform Probate Code?
The UPC was originally intended to be adopted in all 50 states. However, only a few states adopted the UPC in its entirety.
There are other states which have adopted various portions of the UPC into their existing laws. Currently, there are 18 states which have adopted the full version of the UPC, including:
- New Jersey;
- New Mexico;
- North Dakota;
- South Carolina;
- South Dakota; and
In the previously listed states, the UPS governs probate estate issues, including:
- The determination of a will;
- Functions of an estate executor; and
- The process of administering an estate.
Do I Need a Lawyer to Draft My Will if I Live in a UPC State?
It is essential to have a probate lawyer draft your will even if you live in a UPC state because you still want to ensure your loved ones are properly provided for after your passing. If you do not have a will in place when you pass away, you will leave your loved ones at the mercy of probate procedures.
If you have a clearly drafted and properly executed will in place, you can ensure that your property is taken care of and your final wishes are followed. Your attorney will be aware of the laws in your state which apply to probate issues and will help you form an estate plan to protect your estate and follow your wishes.