If you’ve ever had to engage with the probate system, then you know it can be capricious and difficult. However, having a baseline knowledge of what to expect from probate court will come in handy and make the process easier. In this article, we will discuss the “Frequently Asked Questions” about the topic of probate administration.
What is probate?
Let’s start with the basic question of what probate is. Probate, in very simple terms, is the legal procedure through which your “estate” (AKA, everything you own) goes through when you die. This legal proceeding entails the court distributing your estate to creditors and heirs.
What happens during probate?
Every probate is different in some way or another, but most follow a pretty concrete, step-by-step plan. Below are the steps of the probate process:
- An executor or lawyer submits a copy of your death certificate. This starts the probate process.
- Your will, if you have one, needs to be authenticated by the court. The court ensures it has been properly signed in compliance with the law. After the court approves the will, it is “valid.”
- The judge will then formally appoint someone (someone that you’ve probable named) as the executor. The executor will oversee the rest of the process and settle your estate.
- The executor will post your bond, if necessary, though that is not always required. Posting a bond will protect beneficiaries against any errors the executor makes during probate. Bonds can be pretty expensive.
- This is the biggest task: informing creditors and beneficiaries. They need to know that you have passed so they can collect inheritances (if applicable) and settle your debts.
- An assessment must be completed to determine the value of your estate. Everything you own when you died will be valued, and that number will be your estate’s value.
- Next, the executor will pay debts and fees from your estate.
- Remaining assets, if there are any, will be given to the correct beneficiaries. With this, the probate process will likely be considered over.
What must go through probate court?
Your will, obviously, has to go through probate court. If you do not have a will (i.e. if you die intestate), then everything you own goes through probate court. Regardless of what your will states, the following always goes through probate court:
- Any inheritance where your beneficiary died before you
- Non-titled property
- Sole-ownership property
- Partner-owned investment property
What does not have to go through probate court?
There are some assets that avoid probate court. If you plan it right with the help of an attorney, you can help avoid a lot of the probate process, should you have these assets:
- Items with a beneficiary named
- Items inside a living trust
- Payable on death (POD) items
- Transfer on death (TOD) items
- Jointly titled property with Survivor’s Rights
How much does probate cost?
The cost varies depending on where you live and how large the estate is. Court filing fees generally cost $300-$400. Attorneys’ fees vary between 3% and 5% of the value of the estate, but, again, that depends on the lawyer.
I’m confused. What now?
It is very understandable if you are confused by the probate process, and we have only scratched the surface of all there is to know about it. If you are confused, contact an estate planning attorney to help walk you through it. He or she will be able to guide you through this process (or avoid it), reducing stress on you and your family
Hopefully, this article has helped shed a little light on the often-complicated process of probate court. The grieving process is not easy on its own, and probate often makes things even more stressful, hence why getting a lawyer is a better idea than doing it alone.
Questions on probate? Contact WFP Law.