What is Probate How Long Does Probate Take
How Does Probate Work Ways to Bypass Probate
Does
all Property go Through Probate Steps
in the Probate Process
Who is
Responsible for Handling Probate
What
is Probate?
Probate is a legal process that
takes place after someone dies. It includes:
-
Proving in court that a
deceased person's Will is valid;
-
Identifying and inventorying
the deceased person's property;
-
Having the property
appraised;
-
Paying debts and taxes, and
-
distributing the remaining property
as the Will directs.
Typically, probate involves paperwork and court appearances by lawyers.
The lawyers and court fees are paid from estate property, which would otherwise
go to people who inherit the deceased person's property.
Return to Top of Page
How Does
Probate Work?
Probate usually works like this: After your
death, the person you named in your Will as executor - or, if you don't have a
Will, the person appointed by a judge - files papers in the local probate
court. The executor proves the validity of your Will and presents the
court with a list of your property, your debts, and who is to inherit what you've
left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure and manage
your assets during the probate process, which commonly takes about a year.
Eventually, the court will grant your executor permission to pay your debts and
taxes and divide the rest among the people or organizations named in your
Will. Finally, your property will be transferred to its new owners.
Return to Top of Page
Does
All Property Have to go Through Probate When a Person Dies?
No. Most states allow a certain amount
of property to pass free of probate, or through a simplified probate
procedure. In addition, property that passes outside of your Will - say
through a joint tenancy or a living trust - is not subject to probate.
Return to Top of Page
Who
is Responsible for Handling Probate?
In most circumstances, the executor in the
Will takes this job. If there isn't any Will, or the Will fails to name an
executor, the probate court names someone (called an administrator) to handle
the process - most often the closest capable relative, or the person who
inherits the bulk of the deceased person's assets.
Return to Top of Page
How Long
Does Probate Take?
For most estates the process can take many
months, even when there are no objections to the Will and the estate is
uncomplicated. If the estate is large or there are significant problems,
such as estate tax controversies or an attempt to challenge the Will, it can
take years.
Return to Top of Page
Ways to
Bypass Probate:
- you can give all your property away before
you die, but you may have to pay a gift tax and once you give something
away, you can't be sure that you'll get it back if you change your mind.
- You can hold your property jointly with
another person so it goes to him or her automatically upon your
death.
- You can set up trusts that will be paid
upon your death to any person you name. [A trust is property given
to a trustee - a friend or relative chosen by the person setting up the
trust - to manage for the benefit of someone else. A popular form is
the revocable living trust, which the person who sets it up can change or
revoke while still living. At death, the trustee pays the deceased's
debts, taxes and expenses, including the trustee's fees and the costs of
maintaining trust property and then turns over the balance of the property
to the beneficiary.]
Return to Top of Page
Steps
in the Probate Process:
- Someone dies.
- Someone, often the person named in the Will
as executor, files the Will with the probate court, usually in the county where
the deceased lived.
- The executor inventories all assets and
liabilities of the estate.
- The executor signs the petition for
probate, a document summarizing the Will's provisions and naming the heirs.
- The executor may have to locate the
witnesses and file sworn statements from them - or even have them testify -
to affirm that they witnesses the signing of the Will. This step can
be avoided in some states if the witnesses sign a notarized affidavit at the
time the Will is signed. [Texas is one of them.]
- The executor sends a formal legal notice
telling each heir and beneficiary that the Will has been offered for
probate.
- After this step, anyone wishing to
challenge the Will may appear in court to do it.
- Assuming no objections are made or upheld,
the Judge approves the Will and formally appoints the executor.
- The executor settles all accounts by paying
debts and taxes. The executor must provide details to certain
beneficiaries about what property the executor received, what was paid in
expenses, taxes and other costs, and what was given to each beneficiary.
- The executor pays out the remaining assets
to beneficiaries and makes a final accounting of the estate to the court.
- The probate Judge rules the estate formally
closed or, to save legal fees, the beneficiaries agree to release the
executor by written agreement.
Return to Top of Page
For more information see:
www.courttv.com/legalhelp/elder/wills/probate.html
www.nolo.com/encyclopedia/articles/ep/ep28-31.html