What is Probate Law?
“Probate” has a bit of a bad reputation in the world of estate planning. Most of the talk concerning probate is about how to avoid it. Probate is the legal process of administering the estate of a deceased person, resolving all claims against the estate, and distributing the deceased person’s property.
While people often agree that avoiding probate can be a good idea in many cases, it’s helpful to understand the probate process so that you can form the best plan for yourself.
If a person dies with a will, these are sometimes called testamentary probate proceedings. If they died without a will, the person is said to have died intestate.
The granting of probate is the first step in the legal process of administering the estate of a deceased person, resolving all claims and distributing the deceased person’s property under a will.
The probate process can include all aspects of estate administration, such as:
1.Proving the validity of a will, if it exists,
2.Choosing an estate administrator, executor, or representative,
3.Totaling all assets both in and out of the estate,
4.Paying all applicable estate taxes and other debts,
5.Identifying all heirs and other relatives,
6.Distributing any remaining assets to the heirs as described in the will or intestacy statutes.
Probate typically begins when the deceased’s representative files a petition along with the death certificate in the probate court. The process generally ends when the court formally closes the estate.
- Creditors must be notified and legal notices published.
- Executors of the will must be guided in how and when to distribute assets and how to take creditors’ rights into account.
- A Petition to appoint a personal representative may need to be filed and letters of administration (often referred to as “letters testamentary”) issued. A Grant of Letters of Administration can be used as proof that the ‘Administrator’ is entitled to handle the assets.
- Homestead property, which follows its own set of unique rules in states like Florida, must be dealt with separately from other assets. In many common law jurisdictions such as Canada, parts of the US, the UK, Australia and India, the jointly owned property passes automatically to the surviving joint owner separately from any will, unless the equitable title is held as tenants in common.
- There are time factors involved in filing and objecting to claims against the estate.
- There may be a lawsuit pending over the decedent’s death or there may have been pending suits that are now continuing. There may be separate procedures required in contentious probate cases.
- Real estate or other property may need to be sold to effect the correct distribution of assets pursuant to the will or merely to pay debts.
- Estate taxes, gift taxes or inheritance taxes must be considered if the estate exceeds certain thresholds.
- Costs of the administration including ordinary taxation such as income tax on interest and property taxation are deducted from assets in the estate before distribution by the executors of the will.
- Other assets may simply need to be transferred from the deceased to his or her beneficiaries, such as life insurance. Other assets may have pay on death or transfer on death designations, which avoids probate.
- The rights of beneficiaries must be respected, in terms of providing proper and adequate notice, making timely distribution of estate assets, and otherwise administering the estate properly and efficiently.
When one dies without leaving a will, the probate court is sometimes called upon to distribute the deceased person’s assets according to state laws. Again, these proceedings are often handled much like bankruptcy cases, with priorities being established and untimely and inferior claims being extinguished by court order. Generally, after satisfying certain creditors, spouses are entitled to the largest share of a decedent’s estate, followed by children, then other close family members.
Uniform Probate Code:
In the United States, in order to deal with the often conflicting and contradictory state probate laws, a Uniform Probate Code was suggested. Many states have opted to adopt it, or large portions of it, making the probate process much more uniform between different jurisdictions. However, a few states have not yet adopted its provisions, making it critical to determine which laws may affect the probating of an estate, particularly if there are assets located in multiple states, such as homes.
Questions for Your Attorney
- As executor, what parts of the probate process can I do on my own, without an attorney’s help?
- The estate owns property in another state, can you handle the probate process there, or can you recommend someone who can?
- In his will, my father named my sister and me as co-executors, but she doesn’t want to be involved. Can I do the job without her?