When you die, you leave behind your estate. Your estate consists of your assets–all of your money, real estate, and worldly belongings. Your estate also includes your debts, expenses, and unpaid taxes. After you die, somebody must take charge of your estate and settle your affairs. This person will take your estate through probate, a court-supervised process that winds up your financial affairs after your death. The proceedings take place in the state where you were living at the time of your death. Owning property in more than one state can result in multiple probate proceedings. This is known as ancillary probate.
How does probate start?
If your estate is subject to probate, someone (usually a family member) begins the process by filing an application for the probate of your will. The application is known as a petition. The petitioner brings it to the probate court along with your will. Usually, the petitioner will file an application for the appointment of an executor at the same time. The court first rules on the validity of the will. Assuming that the will meets all of your state’s legal requirements, the court will then rule on the application for an executor. If the executor meets your state’s requirements and is otherwise fit to serve, the court generally approves the application.
What’s an executor?
The executor is the person whom you choose to handle the settlement of your estate. Typically, the executor is a spouse or a close family member, but you may want to name a professional executor, such as a bank or attorney. You’ll want to choose someone whom you trust will be able to carry out your wishes as stated in the will. The executor has a fiduciary duty–that is, a heightened responsibility to be honest, impartial, and financially responsible. Now, this doesn’t mean that your executor has to be an attorney or tax wizard, but merely has the common sense to know when to ask for specialized advice. Your executor’s duties may include:
• Finding and collecting your assets, including outstanding debts owed to you,
• Inventorying and appraising your assets,
• Giving notice to your creditors (e.g., credit card companies, banks, retail stores),
• Filing an estate tax return and paying estate taxes, if any.
• Paying any debts or other taxes,
• Distributing your assets according to your will and the law, and
• Providing a detailed report of how the estate was settled to the court and all interested parties.
The probate court supervises and oversees the entire process. Some states allow a less formal process if the estate is small and there are no complicated issues to resolve. In those states allowing informal probate, the court may be involved only indirectly. This may speed up the probate process, which can take years.
What if you don’t name an executor?
If you don’t name an executor in your will, or if the executor can’t serve for some reason, the court will appoint an administrator to settle your estate according to the terms of your will. If you die without a will, the court will also appoint an administrator to settle your estate. This administrator will follow a special set of laws, known as intestacy laws, that are made for such situations.
Is all of your property subject to probate?
Although most assets in your estate may pass through the probate process, other assets may not. It often depends on the type of asset or how an asset is titled. For example, many married couples own their residence jointly with rights of survivorship. Property owned in this manner bypasses probate entirely and passes by “operation of law.” That is, at death, the property passes directly to the joint owner regardless of the terms of the will and without going through probate. Other assets that may bypass probate include:
• Investments and bank accounts set up to pass automatically to a named person at death (payable on death)
• Life insurance policies with a named beneficiary (someone other than the estate)
• Retirement plans with a named beneficiary
• Other property owned jointly with rights of survivorship
How Does the Probate Process Work?
Every estate and every Will is different. The exact probate process can vary depending on the instructions left in the Will and the assets, creditors, and beneficiaries the estate has.
The basic process for an executor is:
• Gather the full details of the estate’s assets and debts
• Apply for Grant of Probate (permission to administer the estate and pass out inheritance)
• Complete an inheritance tax return and pay any tax due
• You receive a Grant of Probate
• Repay any of the deceased’s outstanding debts
• Distribute the rest of the estate according to the instructions left in the Will.
How Long Does Probate take?
This will take about a year for most estates. The exact amount of time will depend on the size and complexity of the estate. International probate can be more complicated and usually takes between six months and two years. Sometimes disputes can come up during probate between the executor, beneficiaries, creditors, or tax authorities. These disputes can delay you in administering the estate.
How Much Does Probate Cost?
We offer a highly personalized service for each of our customers. The cost will depend on the amount of work you’d like us to do.
When you speak to one of our team, we’ll:
• Judge how much work is involved based on your requirements and the size of the estate
• Give you an estimate for our fees before starting any work
• Always try and quote a fixed-fee cost, if possible, for your peace of mind.
Who Can Apply For Probate?
Only the executor named in the deceased’s Will can apply for probate to administer their estate.If you have been named executor but don’t want to administer the estate yourself, your lawyer or law firm can apply for you. If someone dies without a Will, they are said to be intestate. The intestacy rules will say who can apply to administer the estate instead.
Can You Get Probate If There Is No Will?
You can’t get a Grant of Probate if there isn’t a Will, but you can still administer the estate and distribute inheritance through a slightly different process. The rules of intestacy set out who can apply to administer the estate with a Grant of Administration. Without a Will deciding how to pass on the assets, the administrator distributes inheritance according to the rules of intestacy. Only spouses, civil partners, children, and other close relatives can inherit under these rules.
Can I Challenge Someone’s Will?
You may be able to challenge or contest a Will if you think it doesn’t accurately represent the deceased’s intentions for their estate, or because you think it is invalid for other reasons.
You can contest a will if:
• The Will has been forged
• The deceased had reduced mental capacity when writing their Will
• The deceased was under undue influence when writing their Will
• You were financially dependent on the deceased and the Will doesn’t provide for you (as required by the Inheritance Act).
Can A Will Be Changed After Death?
You can change a valid Will, but you can only make changes to the share of the inheritance that it has given you. You will need to apply for a document called a deed of variation, or a deed of family arrangement, to do this. Changing a will after someone dies can be a tricky process.
What Rights Does A Beneficiary Have?
A beneficiary is someone who is due to receive an inheritance from an estate. If you’re a beneficiary of a Will, you’ll have certain beneficiary rights that the executor of the estate needs to abide by. If the deceased has left a valid Will, the beneficiaries of their estate will be named in the Will. If there is no valid Will, the beneficiaries will be chosen according to the intestacy rules. Beneficiaries have a right to information during the probate process. It is the executor’s responsibility to keep beneficiaries up-to-date with how the estate administration is progressing. They must keep accounts for the estate and show them to beneficiaries when asked. Beneficiaries can take legal action against an executor if they breach these rights or if the executor is otherwise mismanaging the estate.
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.
What Is the Difference between a Traditional Will and a Military Will?
Soldiers and sailors have long been exempted from the above stringent requirements of a traditional will. Because a sailor or soldier is in close proximity to extremely dangerous conditions, it is seen as appropriate that they can change their will as they see fit to accommodate their dangerous occupation. As such, anyone in “actual military service” has a lower standard when drafting their will. Military wills differ from traditional wills in several ways:
• The military will can be oral or written,
• The drafter of a military will can be a minor,
• The requirement of a witness is reduced to one, and sometimes none at all,
• The drafter of a military will can be in any physical or mental condition, and
• Only the personal estate of the drafter of a military will can be devised, not any real estate.
When Do You Have to Go Through Probate?
Leaving a will behind when you die is the responsible thing to do. But leaving a will, doesn’t always mean that there’s no need for probate. An estate may undergo formal probate for many reasons including when a will is contested, unclear, or invalid, or when the assets are held only in the deceased’s name. And when there’s no will, probate is often required to oversee the distribution of the deceased’s property. As a general rule, you’ll want to avoid probate if possible. Unfortunately, there are situations where you don’t have a choice. Let’s explore those situations that determine when you have to go through probate.
When There’s A Will
Determining if a will needs to go through probate depends on the laws of your state and the property you hold at death. Some states, such as Washington, do not require probate to be filed. Other states base the need for probate on the value of the estate. Common situation when you have to go through probate with a will include:
• Will Contest: Disputes can arise because family members are unhappy with the deceased’s estate plan. Death can cause old family tensions to resurface causing disputes over insignificant family property. A beneficiary may contest the validity of a will’s construction. If someone who could take under the will protests the division of property, you must probate the will. All challenges are handled in probate court.
• Value of the Estate: Smaller is better when it comes to probate. It’s common practice to allow estates falling below a predetermined value to avoid probate. In California, estates valued over $150,000, and that don’t qualify for any exemptions, must go to probate. In Oklahoma, a probate is required on an estate valued over $20,000.
• Assets Held Only in Deceased’s Name: Probate is not just about distributing property. It also initiates the legal transfer of title to that property. If a person dies and owns real estate, regardless of value, either in his/her name alone or as a “tenant in common” with another, a probate proceeding is typically required to transfer the property. However, many states offer a quicker, less expensive probate-alternatives for transferring title to cars.
When There’s No Will
When a person dies without a will, they are said to have died “intestate”. The laws of the state where you reside will determine how your property is distributed upon your death. However, probate administration when there’s no will is similar to when there is one. When you die, your property is classified as either probate property or non-probate property.
• Determining the Estate’s Heirs: If no Will exists, the property is divided among the person’s heirs. In California, if the person has a spouse and or children, the property first goes to them. If there is no spouse or children, the property goes to the person’s next nearest relatives. The laws of intestate succession are very state specific.
• Transfer of Assets: When there is no will, probate is frequently required to determine the deceased owner’s probate assets, assess their value and distribute them to creditors and heirs. It’s not uncommon for property transferred under intestacy to be counter to what the deceased would have chosen if living. Probate transfer title to the heirs with the closest family relationship to the deceased. Special provisions, such as the small estate exemption, also apply to an estate without will.
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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!
8833 S. Redwood Road, Suite C
West Jordan, Utah
84088 United States
Telephone: (801) 676-5506
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