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Estate Planning | Probate

What is Probate and How Does Probate Work?

7 min read
Francesca Toledo, J.D.

by Francesca Toledo, J.D.

When an individual dies, their estate may need to go through probate. Probate allows for a person’s assets to be rightfully and legally transferred to the intended beneficiaries and their estate be closed.

The probate process is often daunting. A probate lawyer can help.

Learn more about the probate process and let us connect you with a local unbundled lawyer to help you with the process.

What Is Probate?

Probate is the process of handling the estate of a decedent (a deceased individual), including paying debts and properly distributing their assets. Assets can include bank accounts, real property, personal property, and insurance policy proceeds.

The probate process can be overwhelming, exhausting, and time-consuming. However, it is often necessary, depending on the decedent’s circumstances.

Who Handles Probate?

Not just anyone can handle a probate case. Probate requires an executor, or personal representative, to be appointed as the individual responsible for the entire process.

There are different ways to choose an executor. If the decedent left a valid last will and testament, they probably named their desired executor in the document. If the decedent did not have a will, the probate judge can appoint one if necessary. Executors are usually individuals close to the decedent, including spouses, children, parents, or other relatives.

In the event the decedent names an executor in their will, but the individual is deceased or unable to serve for any reason, the court will appoint an alternative. 

The executor plays a key role in the probate process. They will be in charge of handling the case from start to finish, ensuring all property is fairly and appropriately distributed. 

Where Does a Probate Case Need To Be Filed?

Probate cases are filed in the jurisdiction where the decedent lived at the time of their death.

It is not uncommon to encounter probate cases involving property in states other than the one the decedent resided in. In these circumstances, the executor will likely need to file an ancillary, or additional, probate case in each state where the decedent has property. Not all states require ancillary probate, so check the laws of each state where the property is located.

When Is Probate Needed?

Probate accomplishes many goals, including the distribution of property. In cases where the decedent did not have a valid will, there is property that is solely in their name, or their property doesn’t transfer at death, probate is required. Without probate, property may not be able to be legally transferred to the intended heirs or beneficiaries.

Unless a decedent has a solid estate plan in place, the probate process is often required.

Does All Property Need To Go Through Probate?

No, not all property needs to go through probate. Assets can be kept out of the probate process in certain circumstances.

Any property not designated through a last will and testament or trust will need to be distributed through probate. Additionally, if a piece of property does not have a right of survivorship, that property will likely need to be transferred via probate.

For example, a home can be in two people’s names. But if there is no specific indication in the deed regarding the right to transfer after one of the owners has passed, the remaining owner may not have full rights to the home until it has gone through the probate process. In many states, special language is needed to create such ownership rights, including “joint tenancy with a right of survivorship.”

To determine what property is subject to probate, consult with a probate attorney.

What Steps Are Required for Probate?

This will depend on the laws and procedures in your particular state. Nonetheless, certain steps are generally required.

Gather All Necessary Documents To Open Probate

Gather important documents to file with the court. These include the decedent’s death certificate and their will, if they had one. You will also fill out and apply to open probate.

In the application, the executor will request to be formally appointed by the court. Formal appointment is crucial, as it provides the executor with documentation proving their appointment. This documentation is used to complete certain probate tasks, including getting access to the decedent’s accounts.

Notify All Heirs and Beneficiaries

The executor must notify all heirs and beneficiaries of their intention to open and handle the decedent’s probate case. If any heir or beneficiary objects, they have the chance to do so. These individuals often retain a lawyer to represent their best interests during the administration of the estate.

Creditors’ Notice

Executors must put out a notice of the decedent’s passing, allowing any of the decedent’s creditors to file a claim for payment.

The manner in which an executor must provide notice to creditors will depend on the state’s procedure. For example, the executor may need to file a notice in the local newspaper. The thought behind this is creditors should always be on the lookout for individuals that have passed, giving them a chance to file a creditor claim.

Creditor claim periods vary by state. During this time, creditors are given an open opportunity to file a claim to receive repayment for any debts the decedent may have had. If a state’s creditor period is nine months, the probate case cannot be closed until the entire nine months have passed.

Just because creditors are given a chance to file a claim does not mean they always do. The executor is also entitled to decide what to do with these claims. They may wish to pay the debt or disallow the claim and fight it.

Assess and Maintain the Decedent’s Property

The executor must assess all of the assets and property the decedent owned. Once assessed, the executor must maintain all property until it is distributed. 

Distribute Assets

When the time comes, the executor must ensure all assets and property go to the right beneficiaries. The probate case cannot be concluded until all of the decedent’s assets and property have been transferred.

Pay Taxes

In most states, the decedent’s estate will need to file a tax return. If taxes are due, the executor of the estate will need to pay them with estate funds. This can be a difficult step, with executors often needing to reach out for help from a knowledgeable lawyer or accountant.

File a Request To Close Probate

Once the executor has fulfilled all of their responsibilities, and the creditor claim period has passed, they can file a petition to close the estate. The court will ensure the executor has taken every necessary step, appropriately transferred all assets and property, paid any debts, and nothing remains to be done.

Once everything is complete, the court will close the estate and the executor’s duties will officially come to an end. 

How Long Does the Probate Process Take?

How long a probate case must remain open depends on the circumstances. There is truly no “average” timeframe.

Generally, the duration of the process depends on these factors:

  • How quickly the executor completes all required tasks
  • Whether there are any objections or disagreements
  • Whether the will is contested
  • The size of the decedent’s estate 

Keep in mind even if everything is done on time, the case must remain open while the creditor period is active. 

If you’d like a better idea of how long you can expect the probate process to take, discuss your case with a probate lawyer in your state.

Hiring a Probate Attorney

You are not legally required to hire a probate attorney. Still, probate is a confusing and stressful process, so most people find it easier to complete probate with the help of a skilled lawyer.

You may encounter several bumps along the road. If you’re facing the probate process, you do not have to do it alone. A probate attorney can be your best ally.

While probate lawyers are helpful, they can be expensive. That’s why many people choose to navigate probate on their own, in hopes of avoiding the steep fees.

If you need legal assistance but do not have the funds to hire a traditional probate attorney, an unbundled lawyer may be the ideal solution. An unbundled lawyer is available to you when you need them most, only charging for chosen services. Whether it be drafting documents or helping close your case, you can pick what you require the most help with, and your probate lawyer will provide support. Unbundled Legal Help can connect you today to a local probate attorney to discuss your case.

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