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Estate Planning

What is the Meaning of Probate?

6 min read
Unbundled Legal Help

by Unbundled Legal Help

The word “probate” means to prove the validity of a will through a legal process involving a probate court. 

You may have heard the word used in association with the distribution of an inheritance after the passing of a loved one. Probate is the distribution of the deceased’s assets according to the terms of their will, under the supervision of a probate court. According to a 2020 Gallup survey, 46% of Americans leave a will that directs how they want their estate assets to be distributed upon death. However, not every person leaves a will after death. In those instances, courts must look to state laws of succession to determine how a deceased person’s assets will be divided intestate (without a will). 

Often the suddenness of a loved one’s passing is compounded by grief. Managing distribution of an estate according to your state’s procedures for probate can be confusing and may lead to bad decisions. Having an estate lawyer explain how best to navigate through these issues can be important to all the heirs mentioned in the will as well as relatives not included in the will. 

In addition to information about following your state’s probate statutes, you may want to consider how to plan for managing assets passed on in your loved one’s will. We can connect you today with local probate and estate planning lawyers who will help you with all or part of your legal concerns, perhaps saving you hundreds, if not thousands of dollars.

Probate with a Will

When the deceased leaves a will, the role of probate courts is to ensure the wishes laid out in the will are followed. The court also ensures the will is valid and complies with your state’s laws. If there are conflicts with a will’s provisions for form, the judge may deem it invalid. 

Another important role the probate court plays is to hear the appeals from heirs not named as beneficiaries in the will who wish to contest the validity of the deceased’s will. If you are a named beneficiary in the will, you may have to defend the will against such challenges.

Probate without a Will

In cases where the deceased does not have a will, the laws of your state will determine how the estate’s assets are passed on to the beneficiaries. State laws vary, which explains why probate can be a complicated process without a will. The court takes charge and confirms which heirs are qualified based on the state’s laws. The court confirms the value and existence of assets owned by the deceased. The court will appoint an executor to administer all terms in the will.

What Property Is Included in Probate?

Distribution of property supervised by a probate court will be verified to belong to the decedent. Estate property may include the following assets:

  • Real estate
  • Vehicles, boats, and other titled assets
  • Any personal property without joint ownership claims by another party (such as a spouse)

Joint tenancy is a legal category of property that has co-ownership. Examples are a home, auto, bank accounts. Property in joint tenancy with rights of survivorship avoid probate and ownership passes directly to the co-owner. Property jointly owned with another person passes directly to the other owner upon your passing.

Ensuring You Comply with Deadlines

States have different probate and estate laws, which means you can unknowingly miss the dates after death for filing the will for probate For example, some states require that your petition for probating a will needs to be filed no later than six months after a person’s death. The petition is your first step to trigger a court review of the will. If the decedent failed to leave a will, the court will begin the process of identifying the deceased person’s assets and distribute those assets in accordance with state law.

The best way to avoid missing deadlines is to consult with a probate or estate lawyer who routinely handles probate and estate matters. Consulting with a lawyer does not require you to use them to handle the entire legal process involved with probate. 

What else is involved in probate besides passing assets to heirs?

A probate court also handles the following items:

  • Protects property until the property is distributed
  • Pays off creditors (credit cards, personal loans, medical expenses, and any other debt in the name of the deceased person)
  • Pays taxes
  • Keeps the decedent’s business running pending disposition of the business

Probate can become complicated when multiple heirs make claims that were not clearly spelled out in the will, or if they claim assets were promised differently than directed by the will. Existing debt can also become an issue, since that can reduce the value of assets being distributed. Neither debt nor taxes go away upon a person’s passing. Probate will ensure money owed on property, other debts, and any unpaid IRS taxes are properly paid with probate court supervision.

Who Begins the Probate Process?

If a person has left a will, it should name a person to manage the distribution of their estate after their death. In most cases, a married person at the time of death identifies the surviving spouse as executor to manage the estate.

The executor named in the will files a petition to begin the probate process. If there is no executor named in a will, a judge will appoint someone to take on the role of estate administrator according to state law.

The public can access probate records to confirm if a will is in probate and who is named executor or court administrator. If the person is called an “executor,” that is the person named in the will. If the person is called an “administrator,” that is the person appointed by the court to manage the estate where there was no will. 

A probate attorney can help you to follow the laws and procedures required to efficiently and appropriately complete the probate process.

How Unbundled Legal Services Helps

Lawyers services always cost money, but the total expenditure shouldn’t become a financial burden. While some probate and estate matters become complicated and require extensive support from a probate attorney, most of the time probate processes can be completed with limited help from a legal professional. We connect clients like you with lawyers who will do those things requiring legal expertise, while leaving more routine matters like filing copies of documents with the clerk, etc. for you.

How Much Money Should I Budget?

Full service legal representation will require a retainer that typically exceeds $3,000 along with additional charges as necessary at an hourly rate. These billable hours are impossible for you to control, so an attorney handling your case from start to finish will expect to bill you for copying, staff hours, office supplies, etc.

At the end of it all, your legal costs could exceed $5,000 if you do not handle the routine work on your own. Unbundled helps you pick and choose what you will need help with. Filing a court document is not difficult, especially when courts have processes in place for those who are representing part or all of the case for themselves. Why hire an attorney just to complete forms? 

If you decide to handle some legal tasks on your own, you may limit the total amount of money spent to between $500 and $1,500. We can connect you today with a local probate attorney to discuss your situation.

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