7 Things to Know About the Probate Process
Many business owners and high-income individuals struggle with the decision of whether to take on the many and complex details of estate planning. Understanding the basics of the probate process can help in the decision, and here are some of the basics. Because much of the process is set in state lawi, some details vary, so readers should check their state law specifics with an estate planning professional.
What is Probate?
Put simply, probate is a legal process by which the assets of the deceased are distributed, and debts paid. Details of the process vary by state law, but without the existence of a living trust or other transfer-on-death instructions, probate is the process that deals with a decedent’s propertyii.
Real Estate is More Complicated
It usually takes longer to liquidate real estate assets. This is both because they are often the highest value assets in the estate, but also due to more complicated laws in each state and protections for buyersiii.
Do Not Access Real Estate or Move Personal Property
Often children or other relatives of the deceased are surprised to learn that their parents’ home where they normally have full access, is somewhere they should not be after a death and before the probate process. Also, a common misunderstanding is that a relative named as executor still should not take any actions related to property until instructed to do so by the probate court.iv
The Petition to Probatev
At a minimum, to file a petition to open probate, the filer will need the death certificate, the will, and an experienced probate attorney. Before submitting the will to probate:
- Determine beneficiaries named in the will.
- Take an inventory of the estate.
- Make a list of debts.
An experienced probate attorney and a well-organized set of documents and inventories will get the probate process moving.
Give Notice and Inventory the Estate
All interested partiesvi must be given notice of the death and the estate probate process. Interested parties is a legal term that describes anyone who may have claims to, or rights involved in the estate. Depending on the state and the relationship of the interested party to the deceased, this can be done via newspaper, letters, or process servers.
Administering the Estate
This is the process, the most detailed and often overwhelming, part of closing out the estate. Debts are paid, assets are distributed or sold, and taxes are paid. Generally, the process begins with the largest asset, usually the home of the deceased. Both Federal and State Laws require an appraisal of value on real estate in probate.vii This determines the date of death value of the property, which has tax and resale importance.
Closing the Estate
A final document is prepared and submitted. It details all actions taken during the probate process, every debt paid, account closed, and personal asset liquidated. It also lays out the costs involved in attorney fees, commissions, and other costs.viii
Often, after getting an overview of the process, the business owner or high income individual will place added value on consulting with estate planning experts to set out plans and documents to avoid all or most of the probate process.
i State Laws: Estates and Probate, Findlaw website
ii What Does the Probate Process and Overall Experience Look Like? Homelight website
iii Closing a Deal on Court-Confirmed Real Estate, BusinessInsider website
v What You Need to Know Before You Submit a Will to Probate, EverPlans.com
vi Interested party definition, USLegal.com
vii Why Does a Probate Require an Appraisal on the Decedent’s Property Upon Death? LegalZoom.com
viii Steps in Closing an Estate of a Decedent with Beneficiaries, LegalZoom.com