What is Probate?

Probate is the legal process of administering a deceased person’s estate. It includes getting the person’s Will approved by the probate court,  gathering the person’s probate assets and property, paying the person’s debts and taxes, paying administration expenses, and distributing what remains to those entitled to it under the person’s Will or the state intestacy laws.

How do you start a Probate?

Typically, a Probate proceeding is started when an “interested person,” usually the personal representative or executor named in the Will, files the Will with the appropriate probate court along with an application or petition requesting that the Will be “admitted to Probate” and that the applicant be granted the authority to act on behalf of the estate to collect assets, pay debts and distribute the assets. It is usually necessary and helpful to hire an attorney who is knowledgeable in estate administration to assist in navigating through the probate process.

What property is subject to Probate?

Probate property is any property that is held in the deceased person’s name alone at death, with no joint owners or named beneficiaries.

See “what is included in my estate?” under Estate Planning above. As discussed above, “Probate property” is property owned in the deceased person’s name alone, with no way to identify the person or persons who are to receive the property at the deceased person’s death, other than by a valid Will.

If I have a Will can I avoid Probate?

No, but by having a Will, you can make your wishes known and the probate court makes sure that your personal representative carries out your wishes as they are stated in your Will.

What is a Personal Representative?

A Personal Representative is the person authorized by the Probate court to assume the fiduciary responsibility of administering a deceased person’s estate. Your Will can name the persons you prefer to have act in this capacity.

Who can serve as Personal Representative?

Any legally competent adult can act as a Personal Representative. However, it is wise to name individuals or organizations who have the time, knowledge, ability and expertise to assume the high degree of responsibility involved. Acting as a Personal Representative is time-consuming and often complex and carries with it significant potential personal liability.

What is an Executor?

Executor is just another name for Personal Representative.

What is a Fiduciary?

A Fiduciary is any individual or organization who acts on behalf of others in situations requiring the utmost honesty, objectivity and loyalty. Any individual or organization who is acting in a fiduciary capacity is required to set aside his or her own personal desires and act for the sole and exclusive benefit of those to whom he or she owes fiduciary duties. Examples of fiduciaries are Personal Representatives and Executors of estates, Trustees of trusts, Guardians, and Conservators.

What is a Trustee?

A Trustee is the fiduciary named in a trust who is in charge of overseeing the day to day management of property owned by the trust. A Trustee can be an individual, an institution, such as a bank or trust company, or a combination of both serving as co-Trustees. A Trustee is responsible for managing all of the property owned by a trust for the benefit of the trust beneficiaries. The exact duties of a Trustee will vary based on the types of assets owned by the trust, the terms of the trust agreement, and the requirements of the state law governing trusts.

Is probate expensive?

The cost to probate a Will varies from state to state and case to case. Costs can include court filing fees, attorney’s fees, accountants’ fees, appraisal fees, etc. More complex estates generally are expensive to administer than simpler ones. Estate expenses are paid from the deceased person’s assets and the executor is not required to pay valied estate expenses and debts from the executor’s own funds.

Can I avoid probate?

Yes, it is possible to avoid probate if all of your assets are either transferred to a trust before your death or pass by other non-probate transfer, such as beneficiary designation, pay on death provisions, or are owned as joint tenants with another person. It is still important to have a Will, however, because it is possible that before you die, you may acquire property that would require a probate, and if you have minor children, a Will is the place to name a guardian.

Is there any benefit to having property go through probate as opposed to having assets transferred to a living trust before my death?

In some cases, yes.

Probate involves court oversight over the collection, management and distribution of assets. To the extent that you are concerned that the trustee who administers the trust after your death may not follow the trust terms in exactly the manner you wish, then using a Will to dispose of assets may provide you with some assurances.

Another benefit of probate is that potential creditors are required to assert their claims within a relatively short time period. As part of the probate process, notice of your death is given to all creditors. Creditors (or others who believe they have a claim against your estate) then have a specified period of time in which to file their claims. If they do not make their claims within that time, their claims are cut off. With a living trust, these claims are usually not cut off. For example, suppose a doctor were to die and a patient asserts a malpractice claim ten months after his death. That claim might well be invalidated if the probate claims filing period has expired, but it may not be cut off with regard to any assets held in the doctor’s living trust at his death. It is sometimes said, therefore, that probate has a “cleansing” or “title clearing” effect. Some states, such as California, have a termination of creditors’ rights process for assets held in living trusts that is similar to the probate process, but most states do not.