What You Should Know About the Probate Process
When someone dies, their estate assets must be dispersed according to the instructions in the will or living trust. If the decedent didn’t leave a will or set up a living trust, then the probate court must determine who receives the assets. This is a court supervised process that can take some time. It’s important to understand what happens and when, so you can be prepared if you are an heir, especially if your first question is “What’s probate?” You need to get a basic knowledge to ensure everything is handled legally and in a timely manner to prevent delays as much as possible.
What is Probate and How Long Does It Take?
Probate is the legal process for distributing a person’s property after they pass away. Each state (and sometimes even each county) can have different probate rules and procedures. The probate process is intentionally designed to take a long time. The whole point of the process is to prove the facts of the estate and give creditors plenty of time to come forward. Even simple probate cases can take years to pay heirs, in some cases 3 years or longer.
The first step in the probate process is to file a request for probate. Probate is the court that will decide on how all assets of the estate are to be distributed and will determine the validity of the will of the decedent.
There are two types of probate, formal and informal. Informal probate can be completed quickly and may not even need to go through the court process. Each state determines the rules for what estates may be allowed to go through the informal version. Usually it depends on the dollar value of assets and if there are no creditors.
Formal probate is more complex. It requires a personal representative, also known as an executor, to be appointed by the will or living trust. If there is no will, the court will appoint the person and give them letters of administration to perform their role.
Probate generally takes between six months and a year, but it can take several years. There may be delays if the executor disputes any claims made by creditors or if an heir contests the will. For example, the estate may not be divided evenly among adult children or one may want an asset that was bequeathed to a sibling. They can contest the instructions of the will, and the court will have to decide if they have a valid complaint or if the will stands as it is.
What are the Steps for Probate?File Petition for Probate
The first step in probate is to file with the court in the county where the deceased person lived. Some states allow anyone to do this while others require an attorney. The court will approve or appoint a personal representative to handle the affairs of the estate. The person filing may need to provide a death certificate and the original will for probate to be considered to be opened.Issue Bond
Some courts require you to post a bond if you’re the executor. This is a sum of money to protect the estate from loss if you mishandle things. Some wills will stipulate that no bond is needed, but others may not say anything about it at all. In this situation, the judge can set a bond.
The validity of the will must be proven. A handwritten will may be more difficult to prove than one that was created with an attorney and notarized.Notice to Creditors
Once an executor is chosen, they must notify the heirs and the creditors of probate. They may be required to publish the notice in a local newspaper or send the notice in writing. The state code will set a time limit on how long probate must remain open and how long creditors have to come forward with a claim.Inventory
The first and second steps can be completed at the same time. While waiting for the time to lapse with the creditors, the executor can take inventory of the assets which belong to the deceased person. They may need to have an appraisal done, especially if real estate is involved or a business is part of the estate.Estate Taxes Paid
Once everything is listed, the executor will need to file taxes and pay any tax owed. This includes federal and state tax after filing the correct tax returns. Creditors will need to be paid. If there is a dispute about claims against the estate, the executor will need to present it in court and allow the judge to determine if it’s valid.File Petition for Final Distribution
Once all the credit obligations have been satisfied, the estate may be divided among the heirs. If there is anyone who has contested the will, it will have to be settled in court. Otherwise, everything is divided as instructed in the will. Once all assets have been divided, the executor can petition the court to close probate.
While these steps sound simple enough, they are often time-consuming and complicated. For instance, any real estate may need to be sold and the profits included in the assets of the estate. If one of the heirs wants to keep the real estate, they will need to purchase the other heir’s part and add it to their share.
If the decedent owned a business, it must be either sold or closed and all assets liquidated. If the business had a partner, they may choose to buy out the part that belonged to the decedent. These situations can extend the timeline for probate.
Some states require the executor to get court approval before they can sell any assets. Others allow the executor to act on their own.
How Long Do You Have to File Probate After Death?
Most people will want to file probate quickly after someone dies because of the required timeline for allowing creditors to come forward. They will want to complete this process, so they can get access to their inheritance. However, there may be times when they don’t know that the decedent had any estate. It may be later before anyone realizes that there are assets belonging to the person that must be distributed. In other situations, the person may not want to serve as executor or not realize they were named.
If you have the original will, you must submit it to the court. Deadlines to file may vary by state. Typically, they will range from 30 days after death to three months. If you fail to do so, you could be liable to the heirs for any damages.
Even if you don’t need to go through probate, you must still file the will. They are two separate requirements. In some cases, you may not find any assets for a long time after the death of the decedent. Certain states will allow probate to be opened years later if new assets have been discovered.
What Happens After Probate is Closed?
Once the probate process has been completed, the court may require you to submit documentation of how everything was handled. This may include all creditors that have been paid, any expenses incurred to the estate as part of probate and how assets were distributed.
Once the court approves the documentation, they will officially close the estate. Generally, this means everything is done and the executor’s duties are finished. In some instances, the heirs or creditors may object to how probate was handled. In this case, they can file an objection with the court. They have six months to do so after closing. The most common reason for an objection is for the heir to believe they didn’t receive all they were entitled to.
If the decedent left their estate in a living trust instead of having a will, probate may not be necessary. The living trust should have a beneficiary named who will receive the assets that are included. However, any assets not included in the trust may still be required to go through probate.
Before Taking on Responsibility as an Executor
Before you agree to take on the role of executor, you need to ensure you understand the requirements. You must know the state code regarding probate and review all the steps and deadlines. The probate process can be complicated and confusing, especially if there are a lot of assets or creditors. Even if you decide to accept the responsibility, you can ask the help of an experienced estate attorney who can answer your questions from “what’s probate?” to “what is a probate form and how should it be filled out?” or “How do I file a tax return on the estate?”
You don’t have to handle this responsibility on your own. Legal advice can allow you to avoid the problems that come with so many estates that get stuck in the probate process. They can be with you in probate court and guide you through the tasks you must complete before the estate can be settled.
Why a Probate Advance is the right choice:
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There is no obligation. Your credit history does not matter, and there are no hidden fees. This is not a loan, as we are paid directly out of the estate. and the remainder of your inheritance goes straight to you. If your probate case does not pay, then you owe us nothing. You can use the advance for anything you need, and we will take all all of the risk.