If you have ever been involved with settling a deceased person’s estate, then you’ve heard of the term probate. Often, going through probate is seen as an added burden to the bereaved family. However, most of the challenges connected with probate stem from a lack of information and guidance.

This post aims to provide this information and guidance to empower you to successfully navigate the probate process. Whether you’re currently involved in a probate case or planning for the future to ease the burden on your loved ones, this blog will provide the clarity and insights you need.

Understanding Probate: A History

Probate is a necessary legal process that has its roots in the ancient Roman system of inheritance laws. These laws require that the estate of a deceased person must be administered and distributed according to that person’s wishes or based on legal standards. The Romans assigned officials called curatores who ensured that the deceased’s debts were paid and their properties distributed appropriately.

The probate process we know today began to take shape in medieval England, where churches held courts to manage estates. Churches in those times were deeply involved in family and inheritance matters, helping validate Wills, settle debts (including spiritual obligations like unpaid tithes), and distribute assets.

Probate processes were formalized under English common law by the 16th and 17th century. Also, secular courts began to share responsibilities with church courts. This probate system was brought to the American colonies and became the foundation of the current probate practices in the United States.

Why is Probate Necessary?

Probate ensures that the transfer of assets after death is fair, orderly, and legal by serving the following purposes:

Validating the Will

Probate examines whether a deceased person’s Will is legitimate and reflects the person’s true intentions. The court also confirms if the Will was properly executed and not the result of fraud or undue influence.

Addressing Liabilities

Probate ensures that debts, taxes, and similar liabilities are settled before the assets are distributed among the heirs.

Protecting Beneficiaries and Heirs

Probate protects the interest of the deceased person’s beneficiaries or heirs by properly executing their Will. If a person dies without a Will, probate settles the estate according to state laws on intestacy or death without a Will.

Resolving Disputes

Conflicts can arise over an inheritance, particularly if the Will is unclear or if its terms are being contested. Probate provides a legal framework for resolving disputes and ensures fairness in asset distribution.

Ensuring Accountability

Probate oversees the settlement of an estate, ensuring that the executor or administrator acts in the best interest of the beneficiaries and reports their actions to the court.

Creating a Public Record

Probate proceedings create a transparent public record of the estate’s administration, which can be useful for tracking ownership and resolving future disputes.

The Probate Process: Step by Step

A typical probate process involves the following steps:

1. Petition Filing

The probate process is initiated when the executor (named in the Will) or a deceased person’s family (if there is no Will) files a petition with the probate court. The court then names the executor or Administrator of the estate. During this step, the executor must prepare the essential documents for settling the estate, such as a death certificate, Will, beneficiary designations, Trust documents, etc.

2. Authentication and Verification

In this process, the probate court reviews all the documents presented to ensure that these are valid and comply with state laws. The court may require additional documents from the executor or family to accomplish this step.

3. Estate Inventory

The executor takes an inventory of all the assets of the deceased, including real estate, bank accounts, investments, and personal property. The result of this inventory must be reported to the court for recording and future reference.

4. Liabilities Notification and Settlement

The executor must send notices to creditors and other interested parties to allow them to submit claims for any outstanding debts. The executor uses the funds of the estate to pay valid debts and final expenses, such as funeral costs.

5. Taxes Payment

The executor oversees the payment of the necessary taxes, such as estate and income taxes. They are also responsible for filing the deceased’s final income tax return and any required estate tax returns.

6. Assets Distribution

After all the debts, taxes, and other liabilities are resolved, the executor can distribute the remaining assets to beneficiaries following the terms of the Will or according to state law.

7. Closing the Estate

Once asset distribution is completed, the executor files a report to the probate court detailing how the assets were distributed. If the court approves this report, it can then officially close the estate and end the probate process.

Probate Timeline

Probate can be as brief as 3 months, but in some cases, it can take up to 2 years or longer.

Probate Costs

The cost of probate depends on the size and complexity of the estate. This cost can include but is not limited to the following:

Court Fees - includes filing and administrative fees charged by the probate court.
Attorney Fees - for legal guidance and representation, can be a flat rate or based on the estate’s value.
Executor Fees - compensation for managing the estate, which often depends on the estate’s value.
Other Costs - other expenses such as property appraisal fees, publication costs for notifying creditors, accounting services, etc.

Probate: What to Expect and How to Prepare

Probate is a necessary legal process, but it can also be prone to:

Delays - Several factors determine the completion of the probate steps described above. Delays can happen, and probate often takes longer than expected.
Complications - Even with adequate experience, managing financial records, legal documents, and court proceedings without the help of an experienced probate attorney can be challenging. There is a high risk of complications to happen.
Conflict - As with any matters involving money, conflicts can arise, and disputes among heirs over the Will’s terms or the executor’s actions are highly probable.

To deal with these potential events, you can prepare by:

Staying Organized - Keep all necessary documents in order and together in one place, updating them whenever necessary.
Seeking Legal Guidance - A probate attorney can provide valuable support and ensure compliance with state laws.
Open Communication - Discuss the process with family members to manage expectations and reduce conflict.
Avoiding Probate - Take proactive steps to save your loved ones from suffering a lengthy probate process by planning your estate today. You can consider tools such as a Living Trust, Joint Ownership, Beneficiary Designations, and others. Your choice of tools depends on your estate goals.

Probate Support with Rilus Law

Understanding probate is the key to navigating it successfully. While it can be a lengthy and sometimes stressful process, probate ensures that estates are properly managed and settled. If you have further questions or need assistance with your probate case, contact us. You can always rely on Rilus Law to empower your estate planning decisions.

Navigating Probate: What Families Need to Know