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Probate is the legal process of administering a deceased person's estate. Probate involves identifying, gathering, and valuing the assets of an estate, paying any creditors or taxes, and then distributing the remaining assets to the heirs according to the provisions of a will (if one exists) or state laws.
The probate process usually takes place in the county where the decedent last resided. If the decedent had assets in multiple states, it may be necessary to open ancillary probate proceedings in multiple states.
Possibly - there is a common misconception that if a decedent had a will the estate does not require probate. However, validating a will is simply the first step in probate. Most common exemptions from probate are: 1) the decedent had a Living Trust, 2) the decedent’s asset value is less than the state minimum for probate requirements.
In some cases, it may be possible to avoid probate. This can happen when the decedent's assets are held as Joint Tenants with Right of Survivorship, Trust Assets, Transfer on Death Accounts, or Payable on Death Accounts. Probate may possibly be avoided if the decedent's assets are of a low enough value.
Generally, a personal representative (a general term for the formal titles of Executor/Executrix, Administrator, Public Administrator/Fiduciary) is appointed by the will, the family, or the court to manage the estate. Regardless of title, this person has a fiduciary responsibility to the estate and must act in the best interest of the estate while following the succession plan as provided by the Will, or the state succession laws if there is no will.
Yes. State laws may require that taxes be paid before assets are distributed and the executor is responsible for assuring taxes are paid. Additionally, any income generated by the estate may be subject to taxation before istributed.
IMPORTANT: consult with a tax adviser or lawyer to ensure all taxes are paid.
Contact the probate court in the county where the decedent resided and ask. Or contact an attorney or the executor.
The heirs are then determined by State law. Generally, the surviving spouse, children and other relatives of the deceased will be considered heirs.
IMPORTANT: consult an attorney in your state to get an accurate answer as the laws vary from state to state.
The first step is to obtain a certified copy of the death certificate from the county in which the decedent passed away. Once this has been obtained, the executor of the estate will need to file a petition with the probate court in that same county in order to open the probate. If you live far away from the necessary court, contact us. We can help or connect you with a Certified Probate Expert in the decedent’s county.
Required documents vary depending on the situation. Generally, you will need a copy of the death certificate and the will (if one exists). Other documents might include the title to real estate, deeds, bank and investment statements, tax returns, and inventory of assets. You will also need information about the decedent’s debts, creditors, and potential heirs.
The length of time required for probate will vary depending on the complexity of the estate and the amount of paperwork involved. Generally, it can take anywhere from 3-6 months for a straightforward probate, to up to two years or more for a complex estate. We are here to help you navigate the process more efficiently and ensure that the probate is completed in a timely manner.
The cost of probate depends on the complexity of the estate, but generally it will be around 5% of the gross value of the estate if you have legal representation (highly recommended for most). Probate costs usually include court filing fees, attorney fees, executor fees, and appraisal and accounting costs.
IMPORTANT: track expenses related to estate administration in case the expenses can be billed to the estate account.
Handling all the legal and financial matters related to the estate. This includes: collecting and inventorying assets, paying debts, filing taxes, identifying heirs, and distributing assets to those entitled. The executor is also responsible for notifying creditors of the death and filing any court documents.
In most cases, the house will be included in the probate process. Depending on the laws in your state and other factors, the house may be sold, and the proceeds distributed to heirs. Or the house may be transferred directly to a beneficiary. Contact us to discuss options for inherited property.
In some cases, it may be possible to sell an inherited house before probate is finished. However, this will depend on the laws in your state and other factors. Call us to discuss other options to access equity in the property.
You may not need to be present in person to fulfill your duties. Our team can be “boots on the ground” in many cases.
Gather all relevant documents related to the estate. Including: the Will, any trusts that have been established, and any asset or real estate paperwork. Additionally, you should compile a list of questions for your lawyer so you can get the most out of your consultation.
Depending on the laws in your state, assets may need to be sold, debts paid, and the proceeds distributed to heirs, or transferred directly to a beneficiary.
The best way to avoid probate is to plan ahead. Creating a Will, setting up a Living Trust, or transferring assets into joint ownership are all effective ways of ensuring that your estate passes directly to your heirs without going through probate court.
Let us know if you’d like a referral to an estate planning attorney
Our Team will offer guidance throughout the entire probate process, and even after closing. You’ll be working with someone local who understands timeframes and common obstacles and knows the right people to call for any job.
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