Here are the most common questions about the legal process. We hope this helps!
What is probate?
Probate is the legal process through which the court decides how your property will be divided. If you have a last will, the court will review that document to determine your wishes and will follow those wishes unless the last will is successfully contested by your heirs. If you do not have a last will, the court will assign someone to manage your estate and its distribution, which will be based on your state's laws.
Some people think having a last will allows them to avoid probate. This isn't true. A last will is submitted to probate court to determine who receives your property, who is appointed as guardian of any minor children, and who will be responsible for carrying out the last will's requirements. Probate is not required in many states if the value of the estate is less than $50,000. However, if a last will includes real estate or provides for minor children, a formal probate action is generally required. Depending on where you live and the size of your estate, probate can be very expensive and time consuming, with court costs, attorneys' fees and other expenses either paid directly out of, or reimbursed by your estate.
What does an executor do?
Depending on the size of the estate and where the person lived and owned property, some of an executor's main responsibilities are to (1) attempt to locate the original will and submit it to the court, (2) file a petition to be appointed by the court, (3) notify the decedent's family and anyone named in the will, (4) collect the decedent's assets, (5) arrange for the estate to pay the decedent's debts, (6) distribute the estate's remaining assets according to the instructions in the decedent's will, and (7) file tax returns on behalf of the estate.
If necessary, the executor has the authority to sell estate property, as well as defend against any challenges to the contents of the will or other objections. Generally, executors hire attorneys and accountants to assist them throughout the process. They are paid out of the estate assets.
How much does probate cost?
The cost of probate depends upon the state in which it takes place, the complexity of the estate, and whether anyone challenges the will. All states require the payment of court fees, which often amount to hundreds of dollars. In most states, attorney's fees are based upon what is reasonable based upon the tasks required. The fees rise if the will is contested, if estate real estate is sold during the process, or other extraordinary issues arise. In a few states, attorney's fees are based upon a schedule established by law, based upon the value of the probate assets. There are a number of miscellaneous costs, such as property appraisal fees, filing service fees and the like. The costs and fees are paid out of the estate assets.
Do I need an attorney?
On the surface, probate appears to be just filling out forms and it can be tempting to administer the probate on your own. However, having an attorney to guide you through the process has many benefits to the executor, beneficiaries, heirs, and others.
What does an attorney do?
An attorney helps the person responsible for managing and distributing the estate navigate the probate process. It generally involves preparing and filing petitions with the court, attending court hearings, creating and filing an inventory of estate assets, and providing proper and timely notice of hearings, in addition to other communications with the beneficiaries and other interested parties. Here are some of the ways an attorney can specifically help you navigate this process:
- Knowledge: The attorney's knowledge of the probate process helps to eliminate potentially lengthy delays. Typically, the court raises questions throughout the process and asks for additional information to be provided in a specific manner within a short period of time. An attorney's knowledge also protects the executor from potential liability due to errors resulting from a lack of experience, such as incorrectly identifying assets, failing to properly account for these assets, and the like.
- Efficiency: The experience and knowledge of the attorney typically accelerates the process, getting the estate assets distributed to the beneficiaries as quickly as possible. Mistakes on court filings due to inexperience can result in unnecessary delay and frustration, including denials from the probate court. These delays and denials often result from a failure to provide appropriate, customized responses to court inquiries.
- Management of Family Relations: The attorney will serve as the main point of contact between the executor and other beneficiaries, court representatives and property appraisers.
- Timeliness: Probate and finalizing an estate involves many complicated deadlines. An experienced probate attorney can manage and track these deadlines to ensure the required actions are completed on time.
Who handles the estate if there isn't a will?
If there isn't a will, or if the will doesn't name an executor, state law dictates who is in charge in order of priority. Generally, if the person was married at the time of his or her death, the surviving spouse is first in line. If he or she declines, generally the person's children are next in priority, followed by parents, siblings, and so on. If there is more than one person in a particular group, one can serve alone or two or more could serve together. The members of the group can agree on who should be appointed and make that request to the court.
Who can challenge a will?
Generally, anyone who: (1) is the beneficiary of the estate, (2) is an heir of the deceased person who was not named as a beneficiary in the decedent's will, and (3) a beneficiary named in a prior will, can challenge the validity of a will.
What are the main reasons a will is challenged?
Wills are generally challenged by heirs who are excluded from a will or by beneficiaries who receive less than they would be entitled if the will did not exist. For example, if a widow had three children and only named two of them as beneficiaries, the excluded child may consider contesting the will. Or if she named them all as beneficiaries, but did not give all three children equal shares, the child or children who received a smaller portion might consider challenging the will. Also, if there was a prior will that provided for a different distribution of the estate, a beneficiary of the earlier will might consider challenging the validity of the later will.
What is a living trust?
A living trust is an arrangement in which one or more people manage property for your, and someone else's, benefit. It's created during your lifetime. You transfer title to your property from your name as an individual, to you as trustee of the living trust. You can use the trust to ensure your property is managed and distributed as you direct in the document. The trust property can be distributed efficiently after your death to the people and charities you select, without going through the probate process.
When is property in a living trust distributed?
If the trust is created by only one person, the trust is distributed or allocated upon that person's death. In many cases, if a living trust is created by spouses, property in a living trust stays in the trust until both spouses pass away. After the death of the sole, or surviving grantor, the successor trustee arranges to pay any remaining bills and taxes, provides any required notice regarding the trust, and then makes any distributions or allocations based on the terms of the trust. Sometimes the trust property is distributed directly to the named beneficiaries. Often, the property remains in the trust for the benefit of the named beneficiaries until the beneficiaries reach the age(s) designated in the trust.
Can a living trust be challenged?
Generally, yes, a person named as the beneficiary of a trust, or a relative of the deceased grantor who would have received a portion of the deceased grantor's estate if the trust did not exist, can challenge the validity of the trust. The time to file the challenge with the court is limited based on state law. The grounds for challenging the trust are similar to those for a last will.
What is a last will?
A last will is a document that directs the management and distribution of your property and provides for the care of your minor children after your death. Depending on the value of the property distributed under your last will, it may be necessary to go through the probate process prior to distribution of the property.
How do you avoid probate?
Property only goes through probate if it's in the owner's name alone without a designated beneficiary when the owner passes away. For example, if John Smith owned a home as „John Smith, an unmarried man,„ or „John Smith, a married man as his sole and separate property,„ generally, the property would have to go through probate upon John's death. Property that doesn't require probate is property held in trust, in joint tenancy or community property with the right of survivorship. Also if an account has a designated beneficiary, probate is not required. What if a person doesn't own much? Is probate still required? If a person dies owning personal property (not real estate) in his or her name alone worth a total less than a certain amount established by state law, that property can be distributed without going through probate. The threshold amount varies by state and ranges from $50,000 to $150,000. Generally, the property can be distributed if the people entitled to it sign a document spelling out certain facts, and swear that the content is accurate. Then the document is delivered to the people or institutions holding the property, who are required to distribute the property as spelled out in the document.
What if a person doesn't own much? Is probate still required?
If a person dies owning personal property (not real estate) in his or her name alone worth a total less than a certain amount established by state law, that property can be distributed without going through probate. The threshold amount varies by state and ranges from $50,000 to $150,000. Generally, the property can be distributed if the people entitled to it sign a document spelling out certain facts, and swear that the content is accurate. Then the document is delivered to the people or institutions holding the property, who are required to distribute the property as spelled out in the document.
Will my family have to pay estate tax?
Probably not. Estate taxes levied against the amount in the estate, less all appropriate deductions. There are two levels of estate taxes: federal and state. The federal government only taxes estates worth $5,490,000 or more. As of 2017, most states do not tax estates. Those that do are Connecticut, Delaware, District of Columbia, Hawaii, Illinois, Kansas, Maine, Maryland, Massachusetts, Minnesota, New Jersey, New York, Oregon, Rhode Island, Tennessee, Vermont, and Washington. Of those states, only New Jersey taxes estates worth less than $1,000,000.
How do I name a guardian?
Many parents name a specific person or people in their will to take care of their minor child if both parents pass away. If it becomes necessary, the nominated guardian would file documentation with the court requesting to be formally appointed.
Does a parent of a minor have to go to court to be appointed as a guardian?
Generally no. A parent is the natural guardian of his or her child. However, one circumstance in which a guardianship would be required is if the child directly receives assets worth over a certain amount established by state law. The parent would be authorized by the court to serve as the guardian of the minor's estate. This can be avoided by holding the assets in a trust or custodial account for the child's benefit.