Probate is the court-supervised process of gathering up all of an individual's assets, paying their debts, and distributing what's left to beneficiaries.
Some estates are simple enough to pass through without probate court
proceedings.
The length of time a probate case takes depends on multiple factors,
including the requirements and existing case-load at your local probate court.
The probate process is unique in each county and understanding your local process will better equip you to help guide others.
WHEN IS PROBATE NOT REQUIRED
Probate is necessary and required for the vast majority of estates. It's much easier to
answer "When is Probate NOT required" than "When IS Probate required?"
Probate is not required:
When assets are in a Living Trust (taxes must still be paid if Revocable)
> Less than 5% of Americans have a Living Trust
When property is passing to a Designated Beneficiary (e.g. IRA, Life Insurance, Pension)
Real Property held in Joint Tenancy w/ rights of survivorship or Tenants in Entirety (common with surviving spouses, requires Spousal Property Petition)
When you have a "Small Estate". Most states exempt "small estates" but each defines this term differently, so you'll need to get the dollar amounts when you do your research
COMMON MISCONCEPTIONS ABOUT PROBATE
Probate isn't required if there is a Last Will & Testament
o The Will is simply the roadmap for probate in lieu of state succession laws
Probate is NEVER required if the decedent had a living trust
o Many trusts are improperly funded so some assets outside of the trust must still be probated.
The Personal Representative MUST hire a Probate Attorney
o Around 20% of Petitioners will be pro se (Latin for "on one's own behalf") when they petition but many get in over their head and hire legal help.
• No state requires legal representation by law because it's a basic legal right. This is a contentious issue in TX where the state court holds the opinion that representing an estate is not pro se but unauthorized practice of law. Most argue that if the PR is entitled to an inheritance, they they ARE legally representing their own interests.
WHO IS INVOLVED IN PROBATE
• Personal Representative
• Probate Attorney
• Probate Clerk
• Heirs
THE PROBATE PROCESS
Probate Filing
Family reads the will and the named Executor files Probate with the local court. If there is no will, the court will appoint an Administrator for the estate at the initial hearing.
Documents:
• Petition/Application for Probate
• A will (if applicable)
• Death certificate
• List of assets
• List of liabilities
• List of heirs
Responsibilities Throughout the Process
1. Open bank account for the Estate
2. Identify all assets and provide inventory to court
3. Maintain property until distributed or sold (both real and personal property)
4. File final tax return and pay other applicable taxes
5. Pay the estate's liabilities
6. Distribute remaining assets
The initial hearing
• Notice: Petitioner must give notice to heirs, creditors and public (in local newspaper)
• Appointment: Petitioner will be appointed if nobody from family or public objects to the appointment
• Letters of Testamentary or Letters of Authority issued following appointment
• Titles: Executor/Executrix (Testate), Administrator (Intestate), Public Administrator/Fiduciary
• Bonding: Nearly always waived in the will. If no will or no waiver then most states will require a Fidelity Bond to protect the estate against abuse/mistakes of the Administrator. (10% of face amount)
• Court Involvement: Depending on the jurisdiction the court may be involved and an attorney may be required for each step of the process. The better you understand your local process the quicker you will find loopholes to make the process more efficient and less stressful.
• Example: In CA you can petition the court for Full Authority so the Administrator can make decisions independently
“Closing Probate”
• Accounting for Court
• Distribution Priority
Funeral & Medical Expenses
Administration Fees (Attorney, Administrator, other professionals)
Taxes (Local, State and Federal)
General Debts
Distribution to Heirs
Content credited to Chad Corbett and the MagnusOpus Project. In partnership and in part of the certification process for John Hrimnak/Affinity Home Group residing as a Certified Probate Expert.
