Probating a will means settling a person’s estate after they pass away. The process involves gathering all the estate assets, paying any debts owed to creditors, and distributing the remaining deceased person’s assets according to the wishes stated in the will.
This can be pretty complicated and is best done with the help of a qualified estate attorney or legal professional. Sometimes, avoiding probate and its associated costs may be possible through trusts or other estate planning tools.
However, if probate is necessary, it is essential to understand the steps involved to ensure that everything is handled correctly. Creating a Will or Living Trust is a smart move for several reasons. But you know what? The best part is the peace of mind it brings. It’s like a weight off your shoulders!
GREINER LAW CORP. offers customized estate plans for individuals and families that can help protect their remaining assets while avoiding probate. This blog post further explains what it means to probate a will. So let’s dive into it.
What Is Probate? | A Basic Know-How
Probate is validating a will and administering a deceased person’s estate. In most instances, the dead person has prepared legal documentation outlining their wishes to distribute their assets after passing.
The probate court process is generally followed two or more probate proceedings. In the probate court process, the court examines the will’s validity, designates an executor, assesses and appraises assets, and settles the decedent’s debts using the estate’s funds.
Finally, the remaining portion is distributed among the beneficiaries and heirs of the deceased. However, in certain cases, no will is left behind.
Step By Step Guide To Probate A Will
Some of the most important decisions you’ll make in life are when it comes to estate planning and probate. Probating a will is no small undertaking, but it can be manageable with the correct information and guidance. Below is a step-by-step guide for how to probate a will:
- Determine if Probate Will Be Required
A simple test can be applied to determine if probate is necessary: are there titled assets in the estate that will change ownership? If the answer is yes, probate will likely be required.
Examples of assets that would require a change in title if owned individually include real estate, boats, automobiles, or privately held businesses. Probate will be necessary if you intend to sell these assets during the estate settlement process or transfer them to a beneficiary.
However, if the estate’s assets are held in trusts, accounts with designated beneficiaries, or are jointly owned with the other owner still alive, probate may not be required.
- Swear in the Executor
A will typically designate an executor, a personal representative, to administer the estate. The probate judge will appoint a personal representative if an individual dies without a will. Once the executor takes an oath and is sworn in, they receive Letters of Testamentary.
This official document serves to notify all relevant third parties, such as banks and investment firms, that the executor has the legal authority to act on behalf of the estate.
- Posting Bond
To ensure that the executor handles their duties responsibly, many states require that the personal representative post a bond before administering the estate. This bond acts as a form of financial protection for the beneficiaries and creditors of the probate estate, providing reassurance that the executor will fulfill their obligations faithfully.
By requiring this bond, states aim to safeguard the interests of all parties involved in the estate administration process, promoting transparency and accountability.
- Locating the Decedent’s Assets
The executor’s first task involves locating and taking possession of all the decedent’s assets so they can protect them during the probate process. This can involve a fair bit of time and sleuthing.
Some people own assets they’ve told no one about, even their surviving spouse, and these assets might not be delineated in their wills.
- File a Petition
The first step of the probate process is to file a petition with the court. This typically involves completing necessary paperwork and paying associated filing fees.
The executor gains legal authority to manage and administer the estate’s assets efficiently, ensuring proper distribution and resolution of any outstanding matters.
- Identify Beneficiaries
Once appointed by the court, the executor assumes the crucial responsibility of administering the estate. Their diligent efforts involve identifying all beneficiaries and heirs mentioned in the will and thoroughly investigating potential legitimate legal claims to the estate.
This meticulous process entails in-depth research, comprehensive documentation, and the fair distribution of assets to ensure compliance with legal obligations. By engaging in such accurate endeavors, the executor upholds the highest fairness and legal compliance standards in the estate’s distribution.
- Appraise Assets
The executor must appraise all the estate’s assets to determine their value for proper distribution. This may involve obtaining appraisals or consulting experts to assess the value of certain probate assets, such as real estate or business interests.
- Pay Debts And Taxes
The executor is responsible for settling outstanding debts using the estate’s funds. This includes taxes, creditors, and funeral expenses.
As the executor, you also must handle federal and state estate taxes and income taxes on behalf of the estate. According to the new US tax law, estates with assets less than $11.2 million are exempt from federal estate taxes. However, it’s important to note that state estate tax thresholds are generally lower.
Additionally, depending on whether the deceased filed their taxes for the previous year, there may be a requirement to settle one or two years’ worth of federal, state, and local income taxes.
To ensure all bills are paid in full, compiling a comprehensive list of all debts and claims against the estate is crucial.
- Transfer Assets
Once all debts are paid, the executor, entrusted with the responsibility, must meticulously oversee the transfer of ownership of assets to their rightful recipients as explicitly specified in the will.
This may involve carefully evaluating and, if necessary, liquidating certain assets to effectively allocate them to the designated beneficiaries or rightful heirs, ensuring that the wishes of the deceased are correctly fulfilled.
- Close Estate
Finally, after all assets have been distributed, and all debts have been paid, the executor must file a final report with the court and submit documents to close the estate. This ensures no lingering legal obligations or claims against the deceased’s estate.
GREINER LAW CORP. offers comprehensive legal services to help you navigate probate. Our experienced probate attorneys can provide guidance and representation to ensure your rights and interests are protected throughout estate administration.
We understand how complicated and emotionally challenging it can be, so we strive to ensure our clients clearly understand their obligations and options from beginning to end.
Is a Will Always Followed Exactly As Written During The Probate Process?
No, a will is not always followed precisely as written during the probate process. Assets may have to be distributed differently depending on state probate laws or other circumstances.
Additionally, if there are any discrepancies between the deceased’s wishes and what is legally allowed in the state where they lived, the court could require that specific changes be made before final distribution can occur.
For example, if the will directs that all assets be distributed equally among several beneficiaries but state law requires a certain amount to go to surviving spouses or children, those requirements must be met despite the provisions in the will.
It is important to have an experienced attorney involved throughout the probate process to ensure that all legal requirements are followed properly, and any necessary adjustments are made.
Probate Without a Will
If there is no will present at the time of death, probate can still be necessary to handle the deceased’s estate. In this case, state law determines who will receive assets from the estate and how they should be distributed.
The process also involves identifying beneficiaries, appraising assets, settling debts, and distributing any remaining funds according to legal requirements.
An executor is appointed by the court to oversee the process on behalf of the deceased, and all relevant parties are notified that a probate action has been opened. The court may require notification of individuals with a legal claim to part of the estate, such as distant relatives or creditors.
It is important to note that if no will exists, the deceased does not typically choose an executor. Therefore the appointed executor may not be familiar with the individual’s wishes. In this case, state laws will guide the process, and all assets will be distributed according to the law.
What Is an ‘Intestate’ Estate?
An intestate estate is when the deceased did not leave a legally valid will. This can occur when the person never created a choice or when the probate court deems the will invalid due to errors in the document or successful challenges by heirs.
In these cases, state laws will dictate how the assets are distributed and who is entitled to receive them. This can cause estate distribution that differs from the deceased’s wishes, as there is no legally binding document to direct how their property should be allocated.
All individuals with significant assets need to work with an experienced attorney to create a will that is legally valid and can withstand any potential challenges. Doing so can ensure that their wishes are properly carried out in the event of their death.
What Is A Small Estate Probate Process?
A small estate probate process is a simplified version of the traditional probate process. This option is available when the deceased’s total assets are relatively low and do not exceed a specified dollar amount, which varies by state.
The smaller size of the estate typically means that there will be fewer documents to file, less paperwork to complete, and more streamlined probate court proceedings than those associated with traditional probate.
This can also result in fewer fees for the executor or court proceedings and a shortened timeline for the process. To qualify for small estate probate, specific criteria must be met, including having no real property and all heirs being of legal age to receive their inheritances directly from the deceased’s estate.
It is important to speak with an attorney to ensure that all qualifications for a small estate probate have been met before proceeding.
Alternatives to Probate
In many cases, avoiding probate or reducing its time and cost is possible. Properly planning can help avoid probate for any of the following.
Naming an asset’s beneficiary or life insurance policy allows you to bypass probate, ensuring a smoother process. For instance, life insurance policies designate beneficiaries, ensuring that the proceeds are directly transferred to them without probate involvement.
Placing items within a living trust grants ownership to the trust itself. Consequently, when you pass away, the trust can distribute the assets to your specified beneficiaries, avoiding the probate process.
By designating “payable on death” (POD) or “transfer on death” (TOD) on property and assets such as bank and investment accounts, real estate, retirement accounts, stocks, and vehicles, you can sidestep probate and directly transfer or pay them to your chosen beneficiary.
It’s important to note that some states may not permit real estate to be titled this way. Property held jointly with Survivor’s Rights automatically transfers to the surviving owner upon your passing. In this case, probate is unnecessary for the property’s transfer.
Overall, these strategies offer efficient alternatives to probate, facilitating the seamless transfer of assets to your intended beneficiaries.
An experienced attorney is the best way to understand your options and ensure your estate plan meets your needs.
Conclusion
Probation is essential for transferring property and assets from the deceased to their intended beneficiaries. It can be a complicated legal process, but with the help of an experienced attorney, you can ensure that your wishes are appropriately carried out.
Additionally, many alternative ways exist to avoid probate or reduce its cost and timeline. This concludes the overview of the probate process and alternatives to consider. A well-crafted estate plan can help smooth the probate process and ensure that your assets are transferred according to your wishes.
Understanding these strategies and working with an attorney ensures your estate is transferred according to your wishes. GREINER LAW CORP. is here to guide you through the probate process and help ensure your wishes are properly carried out.
Contact us for a free consultation today!
Frequently Asked Questions:
How Much Does Probate Cost?
The cost of probate can vary depending on the size and complexity of the estate. Some states have a filing fee, while others charge based on the estate’s value or a set percentage. It is also essential to consider attorney’s fees and other related costs, such as appraisals, that may be necessary.
What Happens If an Executor Does Not Probate a Will?
If the executor neglects to probate a will, the decedent’s assets will remain in their name indefinitely. Consequently, the deceased individual’s assets, including their house, car, and personal property, cannot be transferred to the rightful recipients without court approval.
