If you ask how long a typical probate process takes, the answer is “it depends.” Every probate process varies by state and by individual case because of the different requirements and procedures that may apply. While there are ways to avoid probate, some states will require it in certain circumstances.
Understanding the Probate Process In Summit Park, Utah
Probate, which is a court-supervised of sorting and administering a person’s estate, begins upon a person’s death. A person can pass away either intestate or testate. If the person passes away testate, the property will be transferred to the beneficiaries named in the decedent’s will. If the person passes away without a valid will, the property will be distributed according to state’s intestate succession laws. Either way, the probate court will be in charge of supervising, distributing, and administering the decedent’s estate. The court will also be in charge of settling any legal disputes regarding the estate or the validity of a will. In a will, a person usually names a specific person as an executor, who will be responsible for managing the decedent’s affairs. If the decedent fails to name an executor or dies intestate, the probate court will appoint a personal representative to fulfill the executor duties.
Probate Process Timeline In summit Park Utah
The probate process begins when the executor presents the will for probate at a probate court where the decedent lived or owned property. The court will first collect all of the decedent’s property. Then, the estate will pay any debts, claims, and taxes that are outstanding. After necessary papers are filed and approved, any remaining property will be distributed to the appropriate heirs. The length of time for probate depends on several factors, such as the size of the estate, the number of taxes and debts to pay, tax issues, the number of heirs, and any contested issues of a will. A typical probate process will take up to 24 months from the date of the decedent’s death. However, in cases of contested issues or lawsuits, the process may take up to several years, or even decades, to settle the issues and conclude probate.
Here’s A Basic Timeline And Specific Steps For A Typical Probate Process.
1 to 4 months Prepare and file “petition for probate” by:
• Proving the validity of a will
• Choosing an estate administrator, executor, or representative
• Identifying all heirs and other relatives
3 to 4 months Court hearing on petition for probate
3 to 4 months Issue the following documents, if applicable:
• Letters of administration
• Letters testamentary
• Orders for probate, duties and liabilities
3 to 5 months Issue probate bond (if ordered)
3 to 6 months Notice to creditors
6 to 12 months Notice to Department of Health Services (if the decedent received medical benefits)
6 to 12 months Estate inventory and appraisal to calculate the estate’s value
6 to 12 months Pay bills and taxes:
• All applicable taxes, state and/or federal
• Estate administration costs
• Family allowances
6 to 12 months Accept or deny creditor claims
6 to 12 months Notice to franchise tax board (if the heir is an out-of-state resident)
8 to 15 months Tax clearance letters
7 to 15 months File petition for final distribution and accounting
8 to 16 months Hearing on petition for final distribution and accounting
8 to 16 months Order approving final distribution and accounting
9 to 18 months Distribution of assets to heirs
9 to 18 months Final discharge order
9 to 24 months Final distribution of estate funds, concluding probate
Note: The above timeline may not apply to cases with more complicated issues or potential lawsuits.
Probate Costs and Fees
The probate process involves certain fees and costs, such as attorney’s fees, the executor or personal representative fees, and court costs. These fees typically come out of the estate itself, which makes the heirs to get less portion of the estate. Because probate can be costly and time-consuming, people tend to look for other options to avoid probate. Navigating the probate process requires you to not only understanding the legal concepts and requirements involved, but also knowing the state-specific rules and procedures. If you’re involved in the probate process, get a free case review by an experienced probate attorney, who can guide you through the process and answer questions.
How To Probate A Will Without A Lawyer
The simple answer is… yes! For the vast majority of probate cases, a lawyer is not required to probate a will.
In fact, anyone can interact with the court system and you can do probate without a lawyer. However, there may be times when a lawyer is necessary during probate. Let’s go over the general steps of the probate process and discuss how to probate a will without a lawyer if possible. Note that even if a lawyer is needed, you can hire them for very specific issues and might not need them for the entire process.
1) Petition The Court To Be The Estate Representative
The court will require the petitioner (person asking the court to appoint an official representative) to fill out specific forms. These forms can (with the help of EZ-Probate) be filled out by you. It will be the basic “Who, What, When, Where,” types of questions. What you will need: A valid will, a copy of a will, or know for sure there is no will. When would you need a lawyer: When filling out the court forms, there is most likely no need for a probate lawyer unless you don’t understand what the will is instructing the executor to do.
2) Notify Heirs And Creditors
The court will provide you with forms to fill out to notify heirs (listed in a will, or if no will state law dictates who the heirs are). Additionally, the representative is also responsible to find out what debts the deceased had and devise a plan to pay those debts. Remember, only assets that pass through probate are liable to pay debts. Learn which assets pass through probate here.
• What you will need: a clear understanding of who the heirs are (will or state succession laws), and a reasonable attempt to uncover debts.
• When would you need a lawyer: If you don’t understand the will or need help determining who the heirs are. Note that all states post the “succession laws” and you can Google them by searching: (state) succession law, or (state) intestate succession.
3) Change Legal Ownership Of Assets
This may be the most straightforward part. With the court appointment, you will now be able to change assets owned by the deceased to the “estate of…”
• What you will need: Court appointment and knowledge of what the deceased owned.
• When you would need a lawyer: There may be assets that have complicated ownership, businesses, royalties, mineral rights etc. If you are unsure how to transfer ownership, then an attorney is needed. For most common assets (bank accounts, investments, property) you will be able to do it yourself.
4) Pay Funeral Expenses, Taxes, Debts And Transfer Assets To Heirs
Note the order that you will need to prioritize payments. The court places a priority on payment of funeral, taxes, and debts before any payments to heirs.
• What you will need: A good accounting of all assets, debts, and likely tax liability. The executor is responsible (personally) to ensure that all attempts are made to pay funeral expenses and taxes.
• When would you need a lawyer: If you don’t have enough money to pay for all of the estate expenses, particularly the taxes. It is advisable seeking legal counsel for probate if the estate is insolvent (more debts than assets).
5) Tell the court what you have done and close the estate
This is when you report to the court and show proof that you have done everything needed to close the estate.
• What you will need: Good documentation of what you have done and the court will provide you with a template to use to report your actions.
• When would you need a lawyer: We recommend that at this point everyone should consult with an attorney to review the actions taken. Although not necessary, it is wise to have an expert’s eye on your actions to avoid any costly (personally to you) mistakes.
How to Avoid Probate
It is possible to avoid probate entirely with careful planning. This is desirable for some people because doing so not only reduces legal fees, but it can mean avoiding the estate tax, which can take a significant amount of a very wealthy estate. Avoiding probate can also protect privacy, since some of the records may not be available to the public. One of the most popular ways to avoid probate is through the use of a revocable living trust. Assets are placed in the trust, but they can used by the trust creator during his or her lifetime. Upon death, assets in the trust are passed to the trust beneficiaries just by operation of the trust document. No probate is necessary.
Life insurance policies pass property outside of probate. Whoever you name as beneficiary on your life insurance policy will receive the death benefit directly with no probate process. Some retirement accounts can pass outside of probate. The account owner names a beneficiary and that person then receives the balance of the account after the owner’s death. Payable on death accounts operate the same way. Real estate that is owned as joint tenants, or joint tenants by the entirety passes outside of probate as well. This type of property has two owners. When the first owner passes away, the second one automatically owns the property. Most families will have some contact with a probate court whether or not a will was created, but in most cases, the process is streamlined and inexpensive.
A will typically designates a legal representative or executor approved by the court. This person is responsible for locating and overseeing all the assets of the deceased. The executor has to estimate the value of the estate by using either the date of death value or the alternate valuation date, as specified by the Internal Revenue Code (IRC). Most assets that are subject to probate administration come under the supervision of the probate court in the place where the decedent lived at death. The exception is real estate. Probate for real estate may need to be extended to any counties in which the real estate is located.
The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time (approximately one year) from the date of death to make any claims against the estate for money owed to them. Claims that are rejected by the executor can be taken to court where a probate judge will have the final say on whether or not the claim is justified. The executor is also responsible for filing the final, personal income tax returns on behalf of the deceased. Any estate taxes that are pending can also come due within one year from the date of death. After the inventory of the estate has been taken, the value of assets calculated, and debts paid off, the executor will then seek authorization from the court to distribute whatever is left of the estate to the beneficiaries. If a deceased person’s estate is insolvent, which means that their debts outweigh their assets, an administrator will likely choose not to initiate probate. In general, individual states may have their own rulings on a statute of limitations for the processing of a will through probate. States can also have thresholds for probate filings.
Probate Without a Will
When a person dies without a will, he is said to have died intestate. An intestate estate is also one where the will presented to the court has been deemed to be invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to state laws. If a deceased person has no assets, probate may not be necessary. In general, a probate court proceeding usually begins with the appointment of an administrator to oversee the estate of the deceased. The administrator functions as an executor, receiving all legal claims against the estate and paying off the outstanding debts. The administrator is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. The probate court will assess what assets need to be distributed among the legal heirs and how to distribute them. The probate laws in most states divide property among the surviving spouse and children of the deceased.
Spouses as Joint Property Owners
Community property laws can recognize both spouses as joint property owners in an intestate proceeding. In effect, the distribution hierarchy typically starts with the surviving spouse. If unmarried or widowed at the time of death, assets are usually divided among any surviving children. After a spouse and children are considered, other relatives may also be deemed appropriate for distribution. Close friends of the deceased will not normally be added to the list of beneficiaries under a state’s probate laws for intestate estates. However, If the deceased had a joint account with right of survivorship or owned property jointly with another, the joint asset would automatically be owned by the surviving partner.
Is a Probate Always Required?
It is important to know whether a probate is required following the death of an individual. The probate process can take a long time to finalize. The more complex or contested the estate is, the more time it will take to settle and distribute the assets. The longer the duration, the higher the cost. Probating an estate without a will is typically costlier than probating one with a valid will. However, the time and cost required of each are still high. Also, since the proceedings of a probate court are publicly recorded, avoiding probate would ensure that all settlements are done privately.
Different states have different laws concerning probate and whether probate is required after the death of a testator. Some states have a specified estate value, which requires probate. For example, probate laws in Summit Park Utah hold that if the value of the estate is less than $75,000, then probate may be skipped. If an estate is small enough to bypass the probate process, then the estate’s asset may be claimed using alternative legal actions, such as an affidavit. Typically, if a deceased person’s debts exceed their assets, probate is not necessarily initiated and alternative actions may be taken. Some assets can bypass probate because beneficiaries have been initiated through contractual terms. Pension plans, life insurance proceeds, 401k plans, medical savings accounts, and individual retirement accounts (IRA) that have designated beneficiaries will not need to be probated. Likewise, assets jointly owned with a right of survivorship can bypass the probate process.
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It’s not a matter of if, it’s a matter of when. Legal problems come to everyone. Whether it’s your son who gets in a car wreck, your uncle who loses his job and needs to file for bankruptcy, your sister’s brother who’s getting divorced, or a grandparent that passes away without a will -all of us have legal issues and questions that arise. So when you have a law question, call Ascent Law for your free consultation (801) 676-5506. We want to help you!
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