What is probate?
It is the legal process of presenting your Will, if you have one, to the Court after your death to authenticate it and appoint your Executor. Your Executor must be appointed by the Court in order to collect and distribute your assets as stated in your Will. However, because it is a legal process, there are many steps that must be followed before your Executor can be appointed.
- An Estate must be opened with the Court and a Petition to appoint your Executor filed. If anyone objects to the appointment of the Executor, even if you name that person in your Will, the Court will conduct a hearing. If anyone Contests your Will, the Court will hold a hearing on that and decide. Your heirs are your spouse and children, and the best option is to get them all to sign a waiver or acceptance of the Executor’s appointment. However, anyone can object if they have some interest in your estate.
- If you don't have a spouse or children, probate becomes even more complicated.
All your heirs need to be identified and notified of the Estate being open and are required to be served with all Court filings. Even if your heir(s) is not a beneficiary, they still need to be notified and have an opportunity to respond. This can be very different in second-marriage situations, if you have minor children, or if you have a child you have lost contact with. If a child dies before you, then all of your deceased child’s children are involved as heirs, but if they are under 18, the Court will need to appoint a separate attorney to represent them. The same is true if any of your heirs are legally incapacitated, such as a mentally disabled child or a spouse with Alzheimer’s or some other condition rendering them incapacitated.
- The Executor will have to submit a host of paperwork along with the Petition to open your Estate, including a list of heirs, filing fees, an inventory, a death certificate, and a public notice to creditors. Upon receipt of all the appropriate information (and if no heirs contest it), the Court will appoint the Executor. If it is contested, the Court withhold a hearing and make a ruling as to who the Executor will be, and it might not be the person you designate in your Will. This is all public record.
- After your Executor is appointed, they will receive Letters of Authority and Estate administration begins. It is a period of time the law permits the Executor to accumulate the assets and report to the Court how he or she intends to distribute them, presumably pursuant to your wishes as stated in your Will, if you had one.
How long does the probate process take?
This period is a minimum of several months after the Executor is appointed. However, in many cases, it can take a year or more. If you die without a will, the process is similar, but the State decides who gets your assets, not you.
- Unfortunately, probate is unpredictable, which is why many people choose to avoid it. However, if all your heirs agree and your assets are centralized, it can go smoothly, but still publicly.
- Typically Probate costs significantly more than putting together an Estate Plan.
There are attorneys that do nothing but probate work. It consists of a lot of paperwork, accumulation of assets and liabilities, notifications, dealing with creditors and often distraught family members and distribution of assets. This can require several Court appearances and can cause extreme discord between your loved ones as they each think they know what you would have wanted and they each may want specific items and property. If they cannot decide among themselves how it is distributed, the Court will decide.
- By avoiding probate, you can give detailed instructions on who administers your estate, who gets your assets, when they get them, and it keeps it all private, making it much more difficult for the creditors and predators to target your loved ones.