Understanding Probate
When you start utilizing an estate planner, you will hear a lot about the probate court and what it will want to do with your estate. A large portion of estate planning deals with making sure that everything is in order so the estate is not slowed down during the probate process. There are even some trusts that can be put in place to avoid probate, which would allow a smooth transfer of your assets to your beneficiaries after you have passed away.
In the legal world, there is a probate court and the process of probate. It is unusual that a legal term is both a noun and a verb, but this court’s duties are very specific. When you understand how the probate court works, it becomes easier to understand the process by which your loved one’s estate will be handled.
What Is The Probate Court?
The probate court is a state-run entity that deals almost exclusively with the finalization of estates after someone has passed away. Some of the more important duties of the probate court include:
- Distribution of assets to beneficiaries
- Determining the validity of a will
- Enforcing the provisions of a will that has been validated
- Establishes estate executors either based on information in the deceased’s will or through a selection process already in place
- Monitors the actions of the estate executor to make sure everything is done in the best interests of the state
One of the misconceptions people have about wills is that they are sent to the probate court immediately after they have been finalized. The truth is that a probate court does not see an estate’s will until after the estate owner has passed away.
What Is The Probate Process?
The probate process occurs when the probate court begins examining a will after the death of an estate owner. When a lawyer says that the will is in probate, that means that the will is currently going through the process of probate as it heads towards being finally resolved. The probate court administers the probate process.
What Are The Parts Of The Probate Process?
The probate process begins when someone passes away and the court requests documents such as the will and an asset evaluation. Then, the probate court will start the process of verifying the will to make sure it is legitimate. Along with the will needing to follow all of the format rules for that state, it also needs to have the properly noted signatures in place. If no other will is presented and the will that the probate court has passes the various tests, then the will is verified and the process moves forward.
If there is an executor named in the will, the probate court will reach out to that individual to see if they are interested in taking the position. If the executor named in the will does not want the job, then the probate court will go into a list of close relatives until someone agrees to be the executor.
Once the executor is in place, the probate court runs everything through that person. All of the activities regarding the estate, including decisions on which assets to liquidate to pay expenses, are all made through the executor. It is the executor who distributes the assets to the beneficiaries and makes the payments to estate creditors.
The probate court will work with the executor to establish an accurate accounting of the estate’s assets. Then the process of reaching out to creditors will begin with the court sending notices to creditors giving them a set deadline to respond with a claim against the estate. The probate court will then prioritize the expenses and begin the process of paying on accounts.
It is entirely possible that the all of the estate’s assets will be liquidated when paying expenses and there will be nothing to distribute to beneficiaries. A good estate planner will usually recommend putting a life insurance policy in place with the beneficiary being the estate to help pay off all of these bills and leave the estate assets for the family members and friends.
The probate court will continue to oversee the business of the estate and monitoring all of the actions taken by the executor. If the probate court determines that the executor is acting in a fraudulent manner, then the executor is removed and a new one put in place. The probate court will then decide whether or not to bring charges against that executor for their actions.
Once all of the estate expenses have been satisfied and the assets have been accounted for, the probate court will work with the executor to declare that the estate has passed through probate and is out of the legal process. In most states, the probate process can take anywhere from six to nine months.
Our firm can help put together your estate to protect your assets from the probate court, and help to make the probate process quicker. We encourage you to contact one of our professional probate lawyers to help you create an estate that will protect your assets and your family.