What is the Probate Process?
A will is a written or oral communication by a person stating how they want their property disposed of at death. Probate describes the judicial process that oversees the distribution and/or management of your estate after your death. This may include distributing your remaining assets (house, car, cash, other property) and paying off any debts you may have incurred in life.
The probate process may be slightly different for each person, as every person will have different belongings and assets. Generally speaking, the main goals of the probate process typically include:
- Confirming the validity of the deceased person’s will;
- Identifying and inventorying all of the deceased person’s property;
- Appraising the property (determining its value);
- Paying off the person’s outstanding debts and taxes; and/or
- Distributing the deceased person’s property.
Probate can be costly when the deceased has left no will or instructions for distribution of their assets or belongings after their passing. Avoiding probate can usually speed up the process of settling your estate.
How Can Probate Be Avoided?
There are three ways to avoid probate. You can own property with someone else, such as your spouse or legal partner, is called joint tenancy. In a joint tenancy or joint possession of real property, when you pass away, the co-owner automatically receives full ownership of the asset (see Roth IRA and Estate Beneficiaries), without having to go through probate to pass the title.
Life insurance automatically guarantees that the named beneficiaries receive the benefit directly after your death (see Estate Planning Life Insurance). The last way to avoid probate is creating a trust, where you transfer the legal title to an asset to someone designated as a trustee (yourself or another individual). In the event of your death, the trustee is bound, according to the terms of the trust, to distribute your property as you direct.
How Do You Initiate the Probate Process?
In order to initiate the probate process, it is usually required that the executor of the deceased’s will initiate the proceedings. The executor is the person who is appointed to distribute the property to the decedent’s heirs and other beneficiaries.
Some of the duties of the executor include locating the will and/or death certificate, and notifying all employers, government departments, financial organizations, and other relevant parties regarding the person’s death. They are also the person who will contact an attorney to help handle the probate court process.
If no executor is specifically named in the person’s will, then the probate court will usually appoint a person to act as the will executor. This person is known as an “administrator”, and is typically the closest relative to the deceased person, or often the person that stands to inherit or gain the most from the probate process.
What Information is Needed For the Probate Process?
The probate process can be complex, and may require a number of different documents and participation from various parties. Generally speaking, these items must be submitted in order for the probate process to move forward.
When filing with the probate court for assistance, it is usually necessary to provide the following items of information or evidence:
- Copies of the deceased person’s valid will and estate documents;
- A list of the different beneficiaries that may be affected;
- A listing of the property involved in the process or dispute;
- Which parties may be involved or affected;
- Any outstanding legal claims or debts associated with the person’s property; and/or
- What you would like the court to accomplish or resolve.
These items are especially needed in the event that there is a dispute or contest over the estate. For instance, the beneficiaries may be disputing over which parties are to receive the different property items. In such cases, these items of evidence will help the court to determine the appropriate remedy and resulting distribution of property.
What are Some Common Probate Disputes or Conflicts?
As mentioned, the probate process may be associated with various disputes or legal conflicts. These can vary from case to case and can involve a wide range of different legal issues. Some common probate disputes and conflicts include:
- Delays in filing (often linked to the negligence of the executor);
- Abuse of executor rights and responsibilities (such as an executor being suspected of stealing the estate assets);
- Missing or questionable will documents;
- Conflicts between beneficiaries as to the proper distribution of the properties; and/or
- Various other disputes that are found relevant at the time.
These types of conflicts can lead to additional legal action or lawsuits, and may require further litigation. In some cases, the proper remedy may involve replacing the executor with a person who is better suited to oversee the probate process on behalf of the deceased person.
Should I Hire a Lawyer for Help with a Probate Issue?
The probate process can be complex, especially if any disputes or conflicts arise. It may be in you and your family's best interest to consult with an estate planning lawyer for assistance. Your attorney can provide you with legal advice and guidance necessary to properly resolve your probate issue.