A lot of people find the probate process difficult to understand. Here’s a complete list of the most popular questions in probate law:
Question #1: What is probate?
Probate is the court-supervised process focused on the management and administration of a person’s affairs, after his or her death. The probate process is available across the country, in all states, and its provisions are similar across all jurisdictions. In most cases, the will is the final document that describes how the assets of the deceased will be distributed and transferred to heirs. However, not all people have wills. In this situation, the probate process is activated and the court will supervise the distribution of the assets, according to law. In most states, the probate process is supervised by the Probate Department of the Superior Court or similar public institutions.
Question #2: How is the probate process started?
Technically, any beneficiary can start the probate process by filing a special request to the local courthouse. However, the probate process is initiated by the executor named in the will. The original will is filed with the clerk of the court and then the Petition for Probate of Will.
If no will was created by the deceased, then the surviving spouse or child must file a Petition for Letters of Administration with the local court. After this, the court will schedule a primary hearing. Then, copies of the petition are served by first-class mail to all relatives of the deceased (up to the second degree). Then, the judge will conduct another hearing during which a new executor is appointed or a personal representative, if there is no executor named in the will. A personal representative is also appointed if the previous executor is unable to perform his or her duties. In some cases, multiple petitions for letters of administration may be filed. If this is the case, the judge will first determine which is the legitimate one and will then determine the personal representative. If the estate is large and there are many assets or potential beneficiaries, you should try to contact a probate lawyer to guide you through this difficult process.
Question #3: Who selects the executor?
Usually, executors are appointed in the will, according to the testator’s wishes. The executor will carry out all the required steps after the testator passes away. Usually, the executor is a close family member or a close friend. An alternate choice is sometimes appointed. In order to avoid legal or financial issues in the future, the testator should inform the executor of his or her role in the will. This will help prepare the executor for his or her future role, once the testator passes away. According to probate law, the duties of the executor include: filing court documents, handling tax documents, managing the testator’s assets, consolidating the estate, selling the property in order to pay taxes and debts to creditors, collecting any debts and other managerial aspects that can occur during the probate process.
Question #4: Should the executor hire a probate lawyer?
The quick answer is yes, the executor should hire an experienced lawyer during the probate process. However, if the estate is small and there are few assets and beneficiaries, the probate process is quite simple and inexpensive. A lawyer is not needed if this is the case. However, if the estate is large, there are multiple beneficiaries and multiple properties, including businesses, a lawyer can help a lot. In these cases, going forward without a lawyer can be disastrous: it can get very expensive and the entire process can last for years.
Question #5: Is the personal representative getting paid?
In some states, personal representatives and the lawyers receive payment, based on a set percentage of the value of the assets that go into probate. This decision is also approved by the Probate Referee. In other states, they do not receive any payment. However, a private contract can be made and they can get paid, according to the will. When personal representatives get paid, these fees are known as “statutory fees”. In special cases, where the estate is large and complex, probate law recommends the payment of extra fees.
Question #6: What assets can go into probate?
All assets that belong to the deceased will go into probate. There is only one exception to this rule: the assets won’t go into probate if they were transferred into a form that allows it to avoid the probate process. These include trusts and assets held in joint tenancy. These assets will not go into probate and will be transferred to the beneficiaries independently, without court supervision. Some assets can avoid the probate process by means of the beneficiary, like retirement accounts, or life insurance policies, but only in special circumstances. This can be done only if the beneficiary is not involved in the estate of the deceased.
Question #7: How are assets transferred if there is no written will?
If the deceased has no legitimate will, his or her heirs or beneficiaries will likely go through a very long, delicate legal process. The whole procedure may take months or even years, depending on the size of the estate, the complexity of the assets and the legal issues that may be discovered. Also, if the assets are located in different states or countries, the procedure will take even longer.
The procedure, known as intestate, starts when the court divides the assets and legal defaults to the surviving relatives. The first step is to pay debts and death expenses. After this, the legal guidelines, according to each jurisdiction, are followed closely. Talk to a probate lawyer to avoid the intestacy procedure.
If the deceased has no close surviving family members, the estate is divided among other known relatives. Because there is no legitimate will, people who the deceased never intended to leave property to may receive a large chunk of the estate. This is one of the main disadvantages of the intestacy. Moreover, the intestacy laws only recognize family members. This means that friends, charities or other members will not receive any portion of the estate. If the court cannot find any close or distant family members, the estate goes to the local or state government. Intestacy can also incur large taxes on the estate, depending on its complexity.