“Probate” refers to the legal process in which a person dies, and their estate is distributed under court supervision. This person is referred to as the decedent. Probate may be used to determine the legal validity of the decedent’s will, or to correctly distribute the estate’s assets to any beneficiaries named in the will. It is also used to establish a plan for paying off any outstanding taxes and/or debts owed by the decedent’s estate.
Probate court refers to a type of court responsible for handling matters involving:
Such courts largely oversee the distribution of a decedent’s assets, according to their will and other estate administration. Probate courts differ from traditional courts in that they narrowly hear cases involving very specific types of law. Additionally, not all jurisdictions maintain probate courts. In some jurisdictions, probate courts are either a separate branch, or may be affiliated with a larger court entity. Depending on the locality, probate court may go by another name, such as a Chancery Court or a Surrogate Court.
What Does a Probate Court Do?
Probate courts and probate judges are responsible for a wide variety of procedural, administration, and legal matters that involve wills and estates. Generally speaking, probate courts perform the following:
- Overseeing the distribution of the decedent’s property and assets;
- Determining the authenticity and legality of an existing will document;
- Enforcing the provisions contained in the valid will;
- Preventing executor and estate administrator misconduct, such as fraud;
- Determining which descendants are to receive the decedent’s property under the specific laws of their jurisdiction; and
- Evaluating any debts, outstanding claims or lawsuits relating to the decedent’s estate.
Other examples of what a probate court handles include:
- Overseeing and authorizing legal name changes, such as in adoption and marriage;
- Appointing conservators to care for a minor, or a person incapacitated by a disability or illness; and
- Appointing a guardian ad litem, who has the responsibility to make certain decisions about the care of a child or a person incapable of representing themselves.
The probate court may also evaluate claims and lawsuits involving will disputes, as well as will contests. Probate courts may also evaluate issues related to intestacy, which occurs when a person dies without a valid will. The probate court will determine how the intestate decedent’s property is to be equally distributed to relatives. Generally speaking, assets would go to the decedent’s spouse first, then their children, and so on.
The government in the person’s state of residence will generally claim the assets of the individual through intestate succession. Each probate court jurisdiction has different laws pertaining to intestate distribution. An example of this would be if a person dies without a will in Maryland. That person’s assets could be distributed to the Board of Education in the city where the person lived.
What Does a Probate Court Judge Do?
A probate court judge has the responsibility of overseeing all aspects of the probate court system. In some jurisdictions, such as Connecticut and South Carolina, probate court judges are elected in partisan elections. In other states, a probate court judge may be appointed by the governor. Their duties may vary based on whether the decedent died intestate.
As previously mentioned, a probate judge handles the administration of estates, as well as guardianship. Only probate judges may declare a persona as legally incapacitated; and, they are the only judges allowed to determine what constitutional rights are to be revoked from a person. An example of this would be taking away a person’s right to vote when they have committed a felony. Finally, probate judges are also responsible for hearing end of life decisions. What this means is that a probate judge is the only judge who may rule to withdraw life support.
What Happens at a Probate Court Hearing?
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 more simple 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. Generally speaking, 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. An example of this would be how in Texas, a Small Estate Affidavit may be filed to transfer property to a decedent’s heirs if the value of the estate is less than $75,000.00. This is not including the homestead property or other exempt property. 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.
What will happen at a probate court hearing will also vary based on the needs of the estate, as well as whether the estate’s owner died in intestacy. When preparing for a hearing it is important to communicate with the attorney assisting you through the probate process. The attorney will inform you of the questions that you will be asked at the hearing.
For example, if you are at a probate hearing regarding whether or not you should be appointed the executor of the estate, the judge may ask you questions related to your competence to perform such duty. Such questions may include your relation to the decedent, whether you have been convicted of a felony, etc. Probate court hearings may become more involved where there is an issue being contested, such as a contested will.
What if I Need to File Through the Probate Court?
You may file a claim with a probate court so long as you have any matters involving an estate that must be resolved. An example of this would be if you determine that an estate is being handled improperly. and that the decedent’s assets are not being distributed according to their will or state law.
Such a case would likely allow you to file a petition with the probate court. In order to resolve such an issue, the court may order that the will’s executor is to give an accounting of their activities. Additionally, the court may appoint a replacement executor altogether.
In general, when filing an action with the probate court, you will need to provide the following information or evidence:
- Factual information involving the dispute or contest;
- Copies of the decedent’s valid will or other estate documents;
- A list of all parties that may be involved in the distribution of the estate;
- A list of the beneficiaries affected;
- A list of the property involved in the dispute;
- Any outstanding claims or debts on the decedent’s estate; and
- A request for what you wish the court to accomplish.
How Long does it Take for an Issue to Get Through Probate Court?
It is important to note that the amount of time it may take for an issue to get through probate court could vary greatly based on each state’s laws regarding the matter. An example of this would be how in Texas, the timeframe in which a probate court deals with wills and estates is six months to four years.
In New York, it could take anywhere from two months to three years, although the average is generally fifteen months. While in some states probate may be completed within one year after a person’s death, in other states, complex probate court matters could take up to two years or longer.
Probate court may be avoided if a person creates a will before their death. It can also be avoided if a person adds a payable on death (“POD”) designation to their bank accounts. After a person passes away, the beneficiary may claim the money directly from the bank without filing an action in probate court. There are many pros and cons to avoiding the probate process, so it is important to discuss the matter with all parties involved in order to determine the best course for each specific case.
Do I Need a Lawyer for Help in Dealing with the Probate Court System?
Probate courts may have their own set of local rules and procedural guidelines. A skilled and knowledgeable probate lawyer will understand the applicable rules and procedures of probate court. Because of this, you should contact a probate attorney.
An experienced probate attorney can provide you with expert advice on numerous probate matters. Additionally, should a formal lawsuit become necessary, your attorney can represent you in court and protect your interests.