How To Navigate the Probate Process

The Consumer's Guide to Probate

and Estate Administration

When a loved one dies, almost everybody expects to have to face certain challenges or issues: planning the funeral, sorting through clothing and other personal belongings, finding the loved one's will (if one exists), and dealing with the grieving process.  While these issues must inevitably  be dealt with, many people fail to realize the complexity associated with actually administering the terms of the will. 

Unfortunately, distributing the assets of a loved one who has passed on is not as straightforward as simply reading the will.  The will must be administered through a process known as 'probate.' 

In addition, if someone passes away without leaving behind a validly executed will, the intestacy statutes must be followed through the probate process in order to transfer belongings legally to the living heirs.

Technically, probate is the process that transfers legal title of property from the estate of the person who has died (the "decedent") to his or her proper beneficiaries. The term "probate" refers to a "proving" of the existence of a valid will, or determining and "proving" who one's legal heirs are if there is no will. Since the deceased can't take it with him, probate is the process used to determine who gets his or her property.

This Consumer's Guide to Probate and Estate Administration is designed to help provide you with information and answers to some of the questions you will encounter.  These are questions which we, as Elder Law attorneys and accountants, deal with on a daily basis. Our clients have found this guide to be a valuable resource, and we hope you will find it useful too. 

One of the most difficult transitions families face is the loss of a loved one and the distribution of the loved one's assets, or 'probate.' In addition to dealing with the stress and emotional turmoil which accompanies the grieving process, the death of a loved one often makes the rest of us come face to face with our own mortality.

When a loved one dies, his or her family is usually left in a state of bereavement and confusion.  How are all the debts going to be handled?  What if there is not enough money to pay all of the creditors?  Who owns the house?  When and how can the house be sold?  What are the children entitled to receive?  Whose responsibility is it to figure all of this out? These are all questions that the death of a loved one can bring to the forefront.

What is Probate?

At death, your will goes through probate. Probate simply means the process by which your last will is determined to be your final dispositive statement and which confirms the appointment of the person or institution you have named to administer your estate. The term probate is also used in the larger sense of probating your estate. In this sense, probate means the process by which assets are gathered, applied to pay debts, taxes and expenses of administration, and distributed to those designated as beneficiaries in the will. The executor or personal representative named in the will is in charge of this process, and probate provides an orderly method for administration of the estate. The executor is held accountable by the beneficiaries (and sometimes is supervised formally by a probate court). The executor is entitled to a reasonable fee or commission unless the will says otherwise. Probate law generally encourages or provides for partial distribution during the period of administration; assets may generally be distributed in kind rather than sold during this time. The tax laws generally focus the responsibility for death tax filings and payments on the executor under a will. Thus, the choice of an executor is an important one.

The basic job of administration and accounting for assets must be done whether the estate is handled by an executor in probate or probate is avoided. In the recent past, lawyers and other professionals have advocated the use of probate avoidance techniques (including revocable trusts) in states where the probate process was perceived as being too slow and too costly. Many states have simplified or streamlined their probate processes over the years.

Why is Probate Necessary?

The primary function of probate is transferring title of the decedent's property to his heirs and/or beneficiaries.Another function of probate is to provide for the collection of any taxes due by reason of the deceased's death or on the transfer of his or her property.The probate process also provides a mechanism for payment of outstanding debts and taxes of the estate, for setting a deadline for creditors to file claims (thus foreclosing any old or unpaid creditors from haunting heirs or beneficiaries) and for the distribution of the remainder of the estate's property to ones' rightful heirs.

Where is Probate Handled?

What if a Decedent Owned Land in More Than One State?

The laws of the state in which the deceased was a permanent resident or "domiciliary" govern who would receive all the deceased's personal property, wherever it was located, and all the deceased's real property located within the state. Thus probate almost always is undertaken in the home state.If the decedent owned out-of-state real property, the laws of the other state govern who gets it (unless there is a Will). If there is a Will, after it is admitted to probate in the home state, it is usually must be submitted to probate in the other jurisdiction in which the deceased owned real property. That separate probate procedure is formally referred to as "ancillary probate". Some states insist upon the appointment of a Personal Representative who is a local resident to administer the in-state property. If there is no Will, Probate is usually required in each state where the real property is situated, in addition to the home state. Each state will have its own unique pattern for distributing the deceased's real property. The real estate in State A all might go to the spouse, in State B it might go 1/3 to the spouse, 1/3 to the son and 1/3 to the daughter, and in State C it might go 1/2 to the spouse and 1/4 each to the son and daughter.

How Long Does Probate Take?

The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the Will, if there is one, and under state law.If there is a Will contest, or anyone objects to any actions of the Personal Representative, things can really drag out. Some matters have taken decades to resolve.

Do We Have to Go Through Probate if There is a Will? 

Why Can't We Just Distribute the Assets as the Will Says?

Generally it is necessary to go through probate or, in the case of smaller estates, a less formal procedure that is still under the general supervision of the probate court, before the deceased's property can be legally distributed. Even if a person dies with a Will (which is known as dying "testate"), a court generally has to have an opportunity to allow others to object to the Will, and if there are any objections, to determine if the Will is valid, because it is always possible that (1) there was a later Will (which, if valid, would replace the older Will), or (2) the Will was made at a time the deceased was not mentally competent to make a Will, or (3) the Will was the result of fraud, mistake or "undue influence" or (4) the Will was not properly "executed", or (5) the so-called Will is actually a forgery, or (6) for some other reason (such as a pre-existing contract) the Will is not fully valid, or (7) there are other claims against the deceased's estate that impact what the beneficiaries under the Will would receive. For example, if the deceased owned real estate in his own name, no knowledgeable outside person would accept title to the property, and no bank would lend a new buyer mortgage money on it, unless the estate went through probate so "clear title" could be given the new buyer. Similarly, few outsiders would enter into any other transactions involving the deceased's property before the Will is "admitted to probate" and/or someone is lawfully appointed to act for the estate.

Who is Responsible for Handling the Probate Process?

The Personal Representative (sometime also referred to as the "executor" or "executrix" if there is a Will, or the "administrator" or "administratix" if there is no Will) is appointed as part of the probate proceeding and has the responsibility for managing the estate through the proceeding, subject to established probate rules and procedures.In many states, the probate court has a considerable amount of control over the activities of the Personal Representative, and requires that she or he obtain prior permission of the court before certain actions, such as the sale of real estate or business interests owned by the estate, may take place.

What Are the Main Duties of a Personal Representative?