What is Probate?
Probate is the legal process involving a will. A will is usually probated in the state and county in which the decedent lived at the time of death. A judge of probate is a special judge who is well versed in the areas of wills, trusts, adoptions, conservatorships, guardianships, and estates. The clerks of the probate court assist in moving the will through the court process. In most cases, attorneys at law are selected by the executor or personal representative to handle the estate during the probate process. In some cases, such as uncomplicated estates with few assets, an attorney may not be necessary.
How much does it cost for probate and how long does it take to complete the probate process?
The answer to this question depends upon the size and nature of the estate, the amount of assets, whether or not there are children, and the particular laws of each state. Probate can be very expensive, especially if there is a contest over the will or other complications. The costs, which are usually paid from the estate's assets before the remainder of the estate can be distributed, include attorneys fees, executor's/personal representative's fees, funeral expenses, and payment of outstanding bills due and owing at the time of death, expense of last illness, and other related costs. If the deceased owned property in multiple states, there is often requirement that separate probate proceedings, known as ancillary probate proceedings, take place in each state. The time for completing the probate process varies. It could take months or years depending upon the estate. If the estate is uncomplicated and there are no contests to the will, the process can usually be completed in a year or less. However, we have all heard horror stories about probate proceedings taking several years or even a decade to complete. That is why estate planning and a proper will are important.
What happens during probate?
During the probate process, assets are disbursed after there has been an accurate inventory of all property, bank accounts, personal property, etc. Furthermore, there are certain notice requirements that must be complied with such as creditors being notified that the person has passed away so that they can file a claim against the estate if necessary. Usually nothing can be sold or distributed without the approval of the executor/executrix or personal representative and, in some cases, the court. Some states provide living allowances for families with limited incomes, but those living allowances are subject to approval by the probate court in compliance with state law. The probate process moves along more quickly when there are no arguments among the heirs, the beneficiaries, the family, or other claimants. If there are any disagreements that result in legal proceedings, the probate proceedings are delayed as well as final distribution of the estate.
What is joint ownership and does it avoid probate?
Joint ownership is essentially the concept of owning property with another person such as your spouse. If joint ownership provides for what is called "right of survivorship", the property automatically passes to the surviving co-owner after the other's death. If the joint ownership does not provide for what is know as "right of survivorship", then the property usually has to be probated. There can be some problems with joint ownership. For example, you increase the chance of possibly being named in a lawsuit if the joint owner becomes involved with credit problems. Other possible problems include gift and income tax situations. Furthermore, because a will does not control jointly owned property, there is a chance you could disinherit your family members unintentionally. Before you enter a joint ownership arrangement, be sure to consult with your own personal attorney. Joint ownership is an extremely important decision to make.