Probate FAQs
Popular Probate FAQs
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The duration of probate can vary significantly depending on the complexity of the estate, the size of assets, and any potential legal challenges. In some cases, probate can be completed within a few months, while more complicated estates may take a year or more.
Not all estates need to go through probate. In some cases, assets may pass directly to beneficiaries without the need for probate, such as assets held in joint tenancy, life insurance policies with designated beneficiaries, and assets in a living trust.
A will is a legal document that outlines how you want your assets to be distributed after your death. It also allows you to name guardians for minor children and an executor to manage the probate process. Having a will is essential to ensure your wishes are carried out and to simplify the probate process.
Yes, there are estate planning strategies that can help you avoid or minimize probate. Creating a living trust, using beneficiary designations for certain assets, and joint ownership arrangements are common methods to bypass probate.
If someone contests the will, they are challenging its validity or specific provisions. When this happens, the probate court will hold hearings to evaluate the claims and decide whether to uphold or modify the will’s provisions.
Probate costs can vary depending on the complexity of the estate, attorney fees, court fees, and other expenses. The total cost is usually a percentage of the estate’s value, but some states have statutory fees based on the size of the estate.
While some individuals can handle simple probate cases on their own, it’s generally advisable to seek legal representation. An experienced probate attorney can navigate the complexities of the process, ensure compliance with the law, and minimize potential disputes or challenges.
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It’s essential to note that probate laws can vary by jurisdiction, so it’s highly advisable to consult with a knowledgeable and well-versed attorney to get accurate information based on your specific location and circumstances.
If you are looking for confident and knowledgeable probate representation, book your consult with my firm today:
Yes, during probate, creditors have the right to make claims against the deceased person’s estate for any outstanding debts. The executor must address these claims and settle debts before distributing the remaining assets to beneficiaries.
When someone dies without a will (intestate), the probate court will follow the state’s intestacy laws to determine how to distribute the estate among surviving relatives. The distribution will be based on legal heirship rules established by state law.
If a person died with debt, their estate is responsible for paying those debts. Typically, an executor (if the decedent had a Will), or an administrator appointed by the court (if the decedent died without a will), is responsible for discovering and paying the estate’s debts before distributing the remainder of the decedent’s property to their beneficiaries or heirs.
No. The estate’s assets will be sold to pay the debts. If there is not enough money to pay the debts, the beneficiaries will simply be left without an inheritance.
An executor is the person you name in your Will who bears the responsibility of marshaling the assets of your estate, paying debts and final expenses, filing final tax returns, and distributing the remaining assets to your beneficiaries. The executor must also comply with court notice and reporting requirements. After these tasks have been accomplished, the executor’s job is finished.
An executor must publish a notice in a newspaper to the decedent’s creditors (even if no known creditors exist). They must give notice to the decedent’s beneficiaries that the Will has been probated and must give specific notice to those creditors who have a security interest, such as a mortgage or a note, in any of the deceased person’s assets. The executor is also responsible for preparing an inventory of the estate’s assets which, in most cases, is filed with the court.
Letters Testamentary is the document issued by the court that gives the executor power to deal with a decedent’s assets. It is a good idea to order multiple copies of this document because financial institutions, title companies, and other entities in charge of changing ownership of a decedent’s assets will require an executor to give them Letters of Testamentary before transferring title to the decedent’s beneficiaries.
Letters Testamentary do not “expire” after a certain date, but many institutions will require the Letters Testamentary to be dated within 60 days of a transfer. This is meant as an assurance that the executor has not been removed by the court before their compliance with a request to transfer the assets. In order to act on the institution’s request, sometimes an executor will need to order additional Letters Testamentary with a later date than the date the Will was probated.
A trustee manages a trust, and while a trust may be created by a will, it’s typically a stand-alone document that is created separately. As opposed to an executor, the role of trustee is usually a long-term position, depending on the structure of the trust. The executor and trustee could be the same person but with different roles. The trustee is empowered by the verbiage in the trust, to take care of the property in the trust and invest as a prudent person would, in addition to making distributions to the beneficiaries as the terms of the trust direct. An executor, on the other hand, is given control over the assets named in a will after the issuance of Letters Testamentary. They are responsible for dealing with assets not placed in trust, along with other duties as directed by the court.
This is a procedure available in Texas Probate only. A muniment of title is a more efficient way to probate a Will. A Will may be probated as a muniment of title if the decedent died without any debt, other than a debt secured by real estate, and there is no need for an executor to manage the assets of the estate. If a muniment of title is appropriate, the court will issue an order stating that the deceased person’s assets should be distributed directly to the beneficiaries named in the Will. The beneficiaries would use the court order as proof that they are entitled to receive the deceased person’s assets.
In California, if a person dies (with or without a will) and their combined community and separate property is valued at less than $166,250, the executor or administrator may file a Small Estate Affidavit. This process requires forms to be filed in the county where the decedent was domiciled at the time of death (or where they owned property if they died out of state). The forms will contain information regarding the decedent’s family history. There is no court hearing, but it may require the use of a probate referee to ensure proper valuation of assets.
In Texas, if a person dies without a Will, and the decedent’s assets – not including their homestead – is worth $75,000 or less, a small estate affidavit may be filed with the court. The small estate affidavit should include information relating to the decedent’s family history and identify their heirs. It should also list their assets, their values, and their debts. The small estate affidavit will not work if the estate is insolvent. The small estate affidavit must include the notarized signature of two disinterested witnesses who have knowledge of the decedent’s family history and the notarized signatures of the decedent’s heirs. The affidavit is then submitted to the court for its approval. As in Texas, there is no hearing. The court’s order approving the small estate affidavit is proof of the heirs are entitled to receive the deceased person’s assets.