Our sincere condolences on the passing of your Loved’ one
When a loved one passes there are many decisions that need to be made. If you find yourself responsible for a property or a business, we are here to help. Our sensitive team of experts can assist you along the way, at your pace, providing expert advice and peace of mind.
What is probate?
Probate is a legal process where you’re named Personal Representative (“executor”) goes before a court to have the Will proved as valid and to be given the right to administer estate property and affirms the Will.
Typically, probate involves paperwork and if the Will is challenged, a court appearance by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property.
Probate usually works like this: after your death, the person you named in your Will as “executor” (or, if you die without 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 the value of your property.
Why is probate necessary?
The primary function of probate
is transferring legal title of the decedent’s property to their heirs and/or beneficiaries. If there is no property to transfer, there is usually no need for probate.
The probate process also provides a mechanism for setting a deadline for descendants and creates a timeframe for the distribution of the remainder of the estate’s property to ones’ rightful heirs.
What is involved in administering an estate?
Your executor has many duties including:
- Identifying and cataloging all property owned by the deceased
- Appraising the property, and paying all debts and taxes Proving that the will is valid and legal
- Distributing the property to the heirs as the will instructs
How long does estate administration take?
The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the Will (if there is one or under state law where there is no Will). Delays may occur because of tax filing obligations, objections, delays in property selling, et cetera.
If there is a Will contest, or anyone objects to any actions of the “executor” or estate fiduciary, the process can take a long time. Some matters have taken several years to resolve, but a year may be closer to the norm.
Who is responsible for handling probate?
In most circumstances, the “executor” named in the Will takes this job. If there isn’t a Will (or the Will fails to name an “executor”), the probate court names someone (sometimes called an administrator) to handle the process – most often the closest capable relative with legal standing, or, the person who inherits the bulk of the deceased person’s assets.
No formal probate may be required if the property of the decedent does not require probate to transfer legal title. (like total bank accounts totaling under $10,000 or estates totaling less than $25,000). In such a case, the “executor” or estate fiduciary named in the Will could potentially administer the estate without obtaining probate. Where there is no Will, a close relative or friend may agree to serve as the estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return, and distributing property to the people who are supposed to get it.
[Please do not rely on any of this information as legal advice.]
This information is not intended to be a substitute for specific individual tax, legal, or estate settlement advice, as certain aspects of the described considerations will not be the same for every estate. Accordingly, where specific advice is necessary or appropriate, consultation with a competent professional is strongly recommended.