Probate is the procedure through which a will of a deceased is verified and admitted as fact in case of estate distribution. The probate court decides the appointment of an executor in case the will of the deceased doesn’t explicitly mention any.
The probate procedure can be complex and time-consuming, depending on, among various other factors, the size of the estate. Most wills nominate the executor who then assumes charge of administering the probate process. The executor usually has thirty days from the date of the estate owner’s death to file documents in the probate court.
If a person dies without leaving behind a will or the will doesn’t explicitly nominate an executor, then the local court has the right to appoint an executor on behalf of the deceased.
The nominated executor also reserves the right to reject the responsibility mentioned in the will. In such a situation, the probate court then nominates someone else in their stead. The executor who is willing to carry out the wishes of the deceased, as they relate to his estates, will have to first prove the validity of the will in a court of law.
Let’s now find out more about the probate process in this detailed guide.
How to File and Validate a Will
In most states, the executor needs to file a will in the local probate court. But, unfortunately, the probate meaning is somewhat fuzzy and vague in most people’s minds. Having the knowledge of probate and estate distribution-related legal aspects will enable the executor to make arrangements for estate distribution. The executor may also need to submit the death certificate of the deceased owner of the estate in the court as part of the petition.
A probate judge evaluates whether a will is legally valid or not. All the estate beneficiaries reserve rights to read the will. The beneficiaries can either accept or object to the validity of the document, following which the court can then make a decision.
In most cases, self-proving affidavits help the courts reach the final verdict as to the validity of the document in question. The will grantor will have signed these documents in the presence of witnesses.
These documents play a key role in verifying the will and commencing the probate process. The executor is then required to sign the letter of authority, which means that he/she agrees to legally enter the probate process and look after the matters of the estate.
Identification of Assets for Probate
When the probate process starts, the executor needs to identify the assets of the deceased and their value. It means that the executor needs to dig deep into the banking account statements and tax documents.
According to some state laws, executors need to provide the court with a document that outlines the detail of the assets of the deceased.
The executor takes over the physical possession of the estate. Their physical presence on the estate is not mandatory, but they will have to ensure that mortgage payments and property taxes are covered.
Paying off Debt and Contacting Creditors
The executor also needs to contact the last creditors of the deceased. Usually, these creditors have a specific time in which they can make a claim against the estate of the deceased. The time frames depend on the state laws. In case a claim has been placed, the executors can challenge them in a court of law. The court then decides on the ownership or transfer of the estate in such cases.
The estate needs to have cleared its debts. Any medical or other bills and expenses that the deceased hadn’t covered before death should be taken care of. If a deceased had a major debt to pay, the transferable estate will be put into debt servicing.
Filing the Deceased’s Final Taxes
Unfortunately, death doesn’t offer any escape from government taxes. The executor needs to file and pay off the final taxes that the deceased may have not paid on the estate funds. The federal estate tax can go up to 40%. Some states also enforce their own tax as well, which can further increase the taxation amount.
Also, estate taxes are due within a year after the death of the owner. However, a person can reduce the size of the estate in his life to make the property tax-free.
Distributing Property from an Estate
During the legal proceedings, the executors need to provide documentation to the court about the transactions they made during the probate procedure. This document also outlines the estimated value of the remaining estate. Some states do not require the executor to fulfill this requirement if beneficiaries believe it to be nonessential.
Once the court has surety that all taxes and debts have been paid, they can move forward with the distribution of the estate. If a person passes away without leaving behind a will, then the court will divide property and assets among the family members of the deceased.
How to Avoid Probate
There are different estate planning tactics that people use to keep their loved ones from entangling in the long and burdensome probate process. Usually, such people will convert their bank accounts into “pay-on-death” accounts.
You just need to sign a form and nominate a beneficiary. Some states even allow converting vehicle registrations and real estate deeds into a pay-on-death property.
Another way to get rid of the probate process is to open a revocable living trust. These accounts can hold anything that has a certain value, such as a car, home, or jewelry.
Once you transfer the property to the trust, it will leave your estate and will no longer remain your property.
The methods above can keep your loved ones away from being embroiled in the overwhelmingly tedious probate process.
Conclusion
The probate is a complex, long, and time-consuming process. You need to be aware of the different legal aspects of the probate process to be able to defend your right to administer estate distribution based on the deceased’s will. The will must be validated; properties and assets mentioned clearly; and taxes, debts, and creditors paid, so that you can start your probate process.
