If you have a Will when you pass away, the Will must be validated so that your final wishes can be legally honored and carried out. The Will must go through a process called probate before your estate is distributed.
What is Probate?
This is a legal procedure of the probate court reviewing and verifying a deceased person’s Last Will and Testament – a legal document that lists assets that are to be bequeathed to named beneficiaries. The Will also designates the Executor (also known as a Personal Representative) who oversees the process and appoints a guardian for minor children in the event both parents die or a single parent dies.
Once the Will is validated by the probate court, the estate is distributed in accordance with your instructions in the document.
Probate laws vary state-to-state. The Uniform Probate Code was first enacted in 1969 and amended in 1990 to help states standardize probate laws. The code has been adopted by 18 states.
Legal Terms in the Probate Process
The probate process involves a lot of legality. Here are definitions of some legal terms:
- Decedent – This is the deceased estate owner whose Will is being probated.
- Petition – An application filed with the probate court to open a probate case for a Will and seeking approval that the named Executor be granted authority to act on behalf of the decedent’s estate.
- Executor – Also known as a Personal Representative, the Executor is a person you choose to oversee your Will through the probate process and is responsible for ultimately paying final bills and distributing assets.
- Administrator – If no Executor or Personal Representative was named in the Will or there is no Will, the court will appoint an administrator to manage a decedent’s estate.
- Intestate – If you die without a Will in place.
- Intestacy – A state law that becomes effective if you die without a Will. The court decides how assets will be distributed to survivors and who cares for your minor children.
The Probate Process
It is a multi-step process. Here’s a breakdown:
- File a Petition – The Will’s Executor must file a petition with the probate court in the county where the decedent lived, typically within 30 days of the date of death. A death certificate must also be filed with the petition, opening the probate case.
- Hearing – A probate judge will conduct a hearing where beneficiaries are notified and can review the Will. The beneficiaries can contest the Will. Signatures including those of the witnesses are verified along with any affidavits.
- Posting Bond – The Executor may be required to post bond before the process moves forward. The bond serves as insurance to protect the beneficiaries and reimburse the estate should there be any fraud or unintentional financial missteps by the Executor.
- Letters Testamentary – Once the judge has validated the Will, the Executor will receive letters testamentary – also known as letters of authority or letters of administration. This gives the Executor authority to oversee the Will.
- Inventorying Assets – The Executor’s first duty is to locate and gather all the decedent’s assets; life insurance policies, financial accounts, valuables, and even those no one knows about.
- Paying Debts – The Executor must pay all outstanding debts and bills and file final income taxes. During the probate process, the Executor is required to pay property taxes, mortgage payments, and property insurance to ensure everything remains current.
- Determining Values – Appraisers may be appointed to determine the value of property and assets at the time of the owner’s death. Some states require a written report be filed, listing each asset and its value and how the value was determined.
- Notifying Creditors – The Executor must notify the decedent’s creditors. Also, a legal notice must be published in local newspapers or online when a Will is filed to serve as an alert to possible creditors.
- Distributing the Estate – The final step is distributing the assets. The Executor must notify the court that all required actions have been completed and seek permission to distribute the remaining assets to the beneficiaries as listed in the Will. If assets are bequeathed to minor children, the Executor must set up a Trust to hold the assets until the minors are of legal age to take possession.
Does a Will Have to Be Probated?
In most cases, the answer is yes. However, there are some circumstances when a Will does not have to go through the probate process. This includes circumstances when there are only assets or property that are owned jointly under “payable upon death” or “rights of survivorship.”
For example, a husband and wife own a home and the husband dies. In this case, the property would automatically pass to the surviving spouse. If there is an asset, such as a retirement account or life insurance policy with a designated beneficiary, it would go directly to the named beneficiary.
What Happens if I Die Without a Will?
If you die without a Will, the court takes over your estate and decides who gets what under your state’s intestacy law. Assets could end up in the hands of people you didn’t want to have anything.
The Cost of Probate
The cost to probate an estate runs from 4% to 7% of the value of the estate. If an estate is valued at $1 million, the cost will range from $40,000 to $70,000. The greater the value, the more it will cost.
There are fees for filing the Will, appraisals, attorneys, ad accounting along with costs for Executor compensation and probate bond. Fees vary by state.
How Long is the Probate Process?
Depending on the complexity of the estate, the probate process averages 9 to 12 months to complete. If issues arise, such as someone contesting the Will, the process could go on for more than a year before it’s settled.