Probate

When a loved one passes away, his or her estate often goes through a court-managed process called probate, during which the assets of the deceased are managed and distributed.  Probate is primarily a process through which title is transferred from the name of the deceased to the names of the beneficiaries.

The cost and duration of probate can vary substantially depending on a number of factors, such as the value and complexity of the estate, the existence of a Will, and the location of real property owned by the estate.  Common expenses of an estate include executors fees, attorneys fees, accounting fees, court fees, appraisal costs, and surety bonds.  Will contests or disputes with alleged creditors over the debts of the estate can also add significant cost and delay.

An objection to a Will, also known as a “Will contest” is a fairly common occurrence during the probate proceedings and can be incredibly costly to litigate.  In order to contest a Will, one has to have legal “standing” to raise objections.  This usually occurs when children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will.  In addition to disputes over the tangible distributions, Will contests can be about conflict regarding the person designated to serve as Executor.

Every probate estate is unique, but most involve the following steps:

• Filing of a petition with the proper probate court.
  
• Notice to heirs under the Will or to statutory heirs (if no Will exists).
  
• Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
  
• Inventory and appraisal of estate assets by Executor/Administrator.
  
• Payment of estate debt to rightful creditors.
  
• Sale of estate assets.
  
• Payment of estate taxes, if applicable.
  
• Final distribution of assets to heirs.                                                                                                 
  

Certain types of assets are what is called “non-probate assets” do not go through probate.  These include:

• Property in which you own title as “joint tenants with right of survivorship”.  Such property passes to the co-owners by operation of law and does not go through probate.
  
• Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries.
  
• Life insurance policies.
  
• Bank accounts with “pay on death” (POD) designations or “in trust for” designations.
  
• Property owned by a living trust.  Legal title to such property passes to successor trustees without having to go through probate.                                                                                
  

If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, although the successor trustee will need to administer the distribution of the deceased’s assets.