—
This content is for informational purposes only and is not intended to provide legal advice.
Probate is a court-supervised process that kicks off after the death of an individual who leaves assets to distribute.
It explicitly ensures the deceased person’s assets, such as money in the bank, real estate, and financial investments, are shared accordingly.
According to a Florida probate attorney at Florida Probate Law Firm, probate enforces the decedent’s intentions if a will does not exist and ensures unauthorized individuals do not claim the assets.
How does probate work?
When property owners die, a probate court usually reviews their estate assets. The process is supervised by a court known as a probate court.
Depending on your state, a probate case may be handled by a surrogate, orphan, or chancery court.
Generally, the role of the probate court is to make sure that the deceased’s debts are paid and their assets are shared per the dead person’s wishes, especially if they have a will.
The probate process involves analysis and transfer administration of the estate assets.
Probate involves six significant steps:
- Initiation
A petition is filed with the probate court with necessary documents, such as the details about the deceased, death certificate, will (if one exists), estate value, and name and addresses of potential heirs and beneficiaries.
- Will validation
The court will verify the will’s validity and address any challenges raised against the will by the heirs and beneficiaries.
- Taking estate inventory
The executor, usually named in the will or appointed by the probate court, identifies and values all assets and liabilities in the estate to create a complete inventory.
- Notifying creditors
To ensure all liabilities are settled before sharing the estate, the court will order the executor to make a public notice for creditors and debtors to come forward and file claims against the estate or make corresponding payments within a stipulated timeframe.
The claims may include unpaid bills, loans, or taxes the dead person owes.
- Paying debts and taxes
The deceased’s outstanding debts, including loans, medical bills, taxes, and mortgages, are paid using the estate assets.
All applicable inheritance or estate taxes are also calculated and paid to the government before distributing the remaining assets.
- Assets distribution
Upon approval by the court, the remaining assets are distributed to heirs and other beneficiaries as outlined in the will or by the state law if no will exists.
The assets may be divided equally or following specific percentages outlined in the will.
When is probate required?
Probate is generally required for property titled only in the dead person’s name. Each state has laws regarding the property and estate value that make probate mandatory.
It is recommended that you consult a reputable probate attorney to understand the specific requirements of your case.
Probate with a will
A dead person with a will is legally known as a testator. The testator commonly chooses an executor, typically a family member, to oversee the sharing of the estate assets.
However, the executor, any relative of the dead person, or any named beneficiary can file a petition for probate to challenge the will’s authenticity.
States have different time frames for the custodians of a will to produce the will in court after the testator’s death.
During the probate process, the court will verify the will’s authenticity before authorizing the executor to distribute the estate assets according to the will.
Probate without a will
A person who dies without a will is said to have died intestate. The term will also be sued for a case whereby the will has been deemed invalid by the court.
In this case, the court will appoint an administrator who will act as the executor for the estate assets.
The assets will be shared according to state laws.
Assets that do not require probate
Assets that do not require probates before they are released to the beneficiaries are known as non-probate assets.
They include:
- Assets assigned to a living trust
- Securities designated as transfer-on-death (TOD)
- Life insurance policies
- IRA or 401(k) retirement accounts with designated beneficiaries
- Assets jointly owned with others
- Assets with a post-death designation, such as payable-on-death U.S. savings bonds
How long does probate last?
The duration of probate varies and is usually dependent on the estate’s complexity, state laws, and the competence of your lawyer.
On average, a probate process takes around a year from the date of the person’s death to when the estate is distributed.
Hiring a probate attorney can help you navigate the process and reduce potential delays or complications.
Filing an objection in probate court
An objection to a petition for probate may be filed if you have evidence that something is wrong with the will presented.
If you believe the executor or administrator lacks the integrity or qualification to serve in the capacity, you can file an objection.
An individual can also file an objection to contest the validity of a codicil. A codicil is a legal document that authenticates changes in a will.
To file an objection in probate court, you can check the probate court website to fill out the designated form.
However, you should do this under the strict guidance of a competent and reputable probate attorney.
—