Probate is the legal process through which a deceased person's estate is properly distributed to heirs and designated beneficiaries and any debt owed to creditors is paid off. In general, probate property is distributed according to the decedent's last will and testament, if there is one, or according to state law if no will exists.
What Is Involved in Probate?
Probate involves several basic steps:
What If There Is No Last Will and Testament?
If there is no will, or if some of the estate's assets have no designated beneficiary, it is through the court-supervised probate process that the remaining assets will be distributed. The probate process also allows individuals to challenge the will, in which case the court decides the appropriate beneficiary of the assets in question.
How Long Does the Probate Process Take?
According to the American Bar Association, the probate process, on average, is completed six to nine months after a probate case is opened with the court. This can vary depending on the court and may take years if there are disputes over legality of the will or distribution of assets. In addition, there may be costs associated with the probate process (such as court fees), the responsibility for which may land on the executor of the decedent's will if they cannot be paid by the estate. For these reasons, many people get a living trust, which can help avoid probate and reduce the time it takes to settle an estate.
What Property Is Not Included in Probate?
There are some types of assets that do not enter probate (called non-probate assets), such as life insurance policies that designate a beneficiary or bank accounts with a "payable upon death" beneficiary specified as part of a legal contract. Real estate held in joint names with rights of survivorship can bypass the probate process as well. You can make almost all of your assets non-probate if you place them into a living trust.
Probate laws vary by state, and it is not always necessary for an estate to enter the probate process upon someone's death. One of the aims of estate planning is often to avoid the probate process in order to have assets distributed to heirs in a timely manner. Talk to your lawyer or estate planning professional if you need help determining the steps needed to ensure appropriate distribution of your estate after your passing.
For more information:
I live in Florida-My husband has died and we did make wills. The loan for the house is in his name but the title is in both names. Do I have to go thru probate?
Hi Jann, since we're not a law firm, we can't advise you on probate laws in your state. If you want help finding a lawyer who could help you with that, try our attorney referral network: http://attorneyconnect.legalzoom.com
My mother pass in August 2009 leaving a letter that was written by my father
seven years ago,sign by my mom, stating what they wanted to leave six
children, to be equally divided. they left two cars, a 40 year old house
completely furnished as they lived in it. Mother assigned one sister and one
brother to take care of the distribution. The house is rented to one brother
who has been in the house for ten years and a niece and her daughter rent
another room. The rent from them takes care of the mortgage . My question
is how long do my siblings have to get things started. It has been very difficult
for all of us, and no one wants to make the first move. I am the oldest and
can't do or say to much. I left home at a early age. Thank you for your reply and
advice.
Thanks for your inquiry. Just a reminder: LegalZoom makes it easy and affordable to create your own legal document, but we don't give specific legal advice. We can help you find an attorney with our attorney referral network: http://attorneyconnect.legalzoom.com
I placed some items in storage. They came from my apartment where the lease is in my name. My father was kind enough to pay most of the bills. Not long ago he passed away, not leaving a will thinking it was not necessasary as my mother had already passed and I am an only child. Now, the gentleman at the storage unit, which I have been paying for years (and am no longer even sure of what is in there), will not let me have access to it unless I undergo probrate yet still expects me to pay or he will auction it off. What are my options?
Hi Steve, and thanks for your question. We're so sorry to hear about your loss, and wish we could help. Unfortunately, LegalZoom can't offer legal advice for your specific situation. You may want to visit our attorney referral network to search for a lawyer to assist you. You can visit the following web site for more information: http://attorneyconnect.legalzoom.com
Where do I get legal receipts for distribuiton of checks to creditors and "horrible" attorney. I need to have something to show to the judge so that I can close this case and not have to keep paying the "BOND". Will certified mail do or is there something official that I should be printing out and having signed ( not that all may sign or accept)
My grandfather just passed away and my sister is the executor on his will. Her and I are not on very good speaking terms and I would like to get the process started on his will and be shure that things are split up correctly. I have not seen his will, but would like to get a copy so I know what to expect. How do I go about doing this?
MY FATHER RECENTLY PASSED AWAY. HE LEFT A WILL THAT LEAVES EVERYTHING TO MY MOTHER WHO IS STILL ALIVE. HOWEVER, HE LEFT A COUPLE OF BANK ACCOUNTS WITH CONSIDERABLE CASH AND THESE ACCOUNTS ARE IN HIS NAME ONLY. EVERYTHING ELSE INCLUDING HOUSE, CAR, OTHER SAVINGS AND INVESTMENT ACCOUNTS ARE EITHER IN A JOINT ACCOUNT OR IN AN ACCOUNT IN MY MOTHERS NAME. AS EXECUTOR TO HIS WILL, DO I NEED TO GO THROUGH PROBATE TO TRANSFER THE ASSETS IN HIS 2 BANK ACCOUNTS TO MY MOTHER?
My mother-in-law passed away 12/11/10. My husband in her only child and she was not married at the time. She did not leave a will and will go through probate. Will her personal possessions (ie. furniture, clothes, etc) go through probate too or can we sell these? Are the appliances in the home also considered personal property since she bought these after she moved into the home? We are trying to figure out what we can sell/donate and what we can't.
Hi Andrea, we are so sorry to hear of your loss and we extend our deepest condolences. Just a reminder: LegalZoom makes it easy and affordable to create your own legal document, but we don't give specific legal advice. We can help you find an attorney with our attorney referral network: http://attorneyconnect.legalzoom.com.
i believe that an executor is not abiding by the will. can the executor be challenged and how.
Hi, this is a really great question. Do keep in mind that LegalZoom is not a law firm and cannot provide legal advice regarding this matter. An attorney might be able to provide you more information, though. If you would like, we can help you find an attorney to assist you. Check out: http://attorneyconnect.legalzoom.com
Hello, thanks for your inquiry. Keep in mind that the probate process can vary quite a bit depending on the state, and the specific situation. As a result, LegalZoom would be unable to provide you a specific estimate. Since states and counties vary, you may wish to contact your county court for probate requirements or you can contact an attorney. If you would like assistance in finding an attorney, please refer to http://attorneyconnect.legalzoom.com
My brother passed and left me, according to his will, 'Executor' of his estate. He also left half interest of a coach/mobile home to me and the other half to his wife. I want to transfer my half-interest to her WITHOUT COMPENSATION from her and WITHOUT TAX CONSEQUENCES to me. HOW do I do this? Can it be done w/o tax consequence to me or am I on the hook for half the appraised value @ time of death?
Hi, thanks so much for contacting LegalZoom. We are sorry to hear of your loss and extend our deepest condolences. Unfortunately, we are unable to advise you on this matter since we are not a law firm. We would be happy to connect you with an attorney that may be able to assist you with your question, though. Try our attorney services department: http://attorneyconnect.legalzoom.com
My husband was taking care of an elderly gentleman friend of ours for the last few years since his wife past away. He left everything to my husband in his will, naming me the executrix to the estate. In order to get the car he left to my husband in his name we need a letter of testamentary. Is there a way to get this without having to get an attorney? We live on my small paychecks and my husbands soc. security.
Hi thanks so much for contacting us. Unfortunately, we do not offer a letter of testamentary document. However, an attorney may be able to assist you with this type of document. Please feel free to refer to http://attorneyconnect.legalzoom.com
Probate of a will form question:
All the forms needed so far have been filed by an attorney who is no longer is available, before I spend the time and money on finding a new attorney, I am wondering if the executor,w/o an attorney, can file the final paperwork to the court? (with the agreement of the division of the estate)
If so, What forms do I need for Newport Beach California? We have all the appraisals, taxes paid etc. and the brothers agree on the split so it should be simple.. just needs a Court/Judge's approval......
Thanks so much for your question, Jenna. LegalZoom makes creating legal documents easy and affordable, but we unfortunately can't give specific legal advice regarding probate processes. However, you can get free legal advice on the LegalZoom Facebook page every Friday. Check out Free Joe Friday: http://zoo.mn/FreeJoe.
My daughter has been named in a will. The man's sons are trying to stop her from receiving anything - there is quite a lot of the estate to be divided among 4 heirs. She has been contacted and told they would give her $50,000 if she signed her part of the will away. I told her not to do that. The will is in probate in Jacksonville - we live in Fort Myers, Florida. How can she get a copy of the will?
thank you.
Hi, thanks so much for your inquiry. We'd love to help, but our specialty is legal documents, not legal advice. You might try contacting the Jacksonville Probate Court, or you can get free legal advice on the LegalZoom Facebook page every Friday. Check out Free Joe Friday: http://zoo.mn/FreeJoe.
Hi,
I am a business client but I have a probate situation. My mother died in October of 2007 and older sister named executrix lives in Brooklyn, NY; she has not done the second accounting in Prince William County, Virginia to close the matter because she is prolonging the distribution of the money in the estate. We have been estranged for a long time. What can I do?
Sincerely,
Michael A. Hanna
My father passed away had a will and my brother is executor. I was power of attorney for my father. One bank account was set up as a joint account. There was no poa or beneficiary in place on acount. In his will he wanted his assets split equally between me and my brother, however our brother who passed away 5 yrs. ago, want his share to go to his two children. The two chidren lived in same town as my father they never called him, visited him, or any contact since my brothers death. I want to know can i protest distribution in probate court. Will i have any chance of winning. Probate court is in Virginia.
Thanks
Thank you for your inquiry. LegalZoom makes creating legal documents easy and affordable, but we can't give specific legal advice on this matter. However, we may be able to help you find an attorney who can assist you through our Legal Advantage Plus plan! Please visit https://www.legalzoom.com/attorneys-lawyers/legal-plans/personal.html for more details.
Hi,
My husband and I have a trust. We would like to amend our trust to add personal property. Is there a legal document that we need to file or can we draw up our own, have it witnessed and attach it to our trust?
Thank You
Hi Aurora and thank you for contacting LegalZoom! If your trust was created through LegalZoom, we can certainly assist you in revising your order to include this change. If the document was created elsewhere, we can still assist you by revoking your old trust and helping create a new one with the correct information. Give us a call (1-800-773-0888, 6am-7pm PST, M-F) or send us an email (psinfo@legalzoom.com) for more details on how!
My Aunt passed away in August of 2011 I had Power of Attorney for both Health and Financial. There is some money left in her bank account. I am trying to get the remainder from the bank. But since she's no longer alive they won't let me withdrawal the money. What steps can I take to take?
Hi Victor - While our specialty is legal documents, not legal advice, we may be able to help you find an attorney who can assist and advise you through our Legal Advantage Plus plan! Please visit https://www.legalzoom.com/attorneys-lawyers/legal-plans/personal.html for more details.
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