What Is Probate Court?
Questions regarding probate come up often in the world of estate planning. Most of the conversation focuses on how to avoid probate and estate taxes. Depending on your case, strategies for avoiding probate may be extremely useful or completely unnecessary. For more on this, see Avoiding Probate FAQ.
This article explains the most basic features of probate. It also provides a state-by-state guide to probate courts across the country.
What Is Probate?
Probate has two meanings. Technically, it refers to the legal process of making sure a last will and testament is valid. It also refers to the general process of distributing a deceased person's estate (estate administration).
The distribution of the decedent's property in the probate estate takes place under the supervision of a probate court. It is carried out by a person known as the decedent's personal representative.
If the representative is nominated in the decedent's will, they are sometimes known as an executor. If appointed by the probate court without a will, they are sometimes called an administrator. The executor or personal representative owes a fiduciary duty to the estate and, therefore, the named beneficiaries.
If a valid will exists, the terms of the will control the distribution of probate assets. If a will does not exist, probate is carried out according to state laws of intestate succession in the state's probate code.
There is also the possibility that a small estate procedure can apply to the estate. States have small estate procedures for estates not exceeding a certain amount. One small estate procedure involves the transfer of property by affidavit.
The probate process normally includes the following steps:
- Filing a Petition for Probate
- Validating the decedent's will, if one exists
- Swearing in a personal representative
- Inventorying and appraising the decedent's probate assets, including personal property
- Giving notice to interested parties
- Paying estate debts and taxes
- Distributing remaining assets to beneficiaries named in the will or, if a will does not exist, to heirs according to intestacy laws
Probate: Pros and Cons
Nearly all probate cases go smoothly. That said, the main downside of probate is that it can sometimes be time-consuming and expensive. Many states require waiting periods ranging from 30 to 90 days as part of the probate process. These waiting periods are generally designed to allow interested parties to contest the estate distribution before it is finalized.
For example, creditors may hold up estate distribution if they remain unpaid. If there is not enough cash in the estate to pay off debts, some assets may need to be liquidated to cover the expense.
Similarly, a disinherited heir may try to contest the validity of the will and seek to have the estate distributed according to intestacy laws instead. Such issues can drive up probate time and costs, which may be deducted from the estate's value.
Probate also serves as an important procedural safeguard. For example, if a will is invalid, the probate process is designed to find out. If the decedent left a more recent will, probate may be the only way to ensure the decedent's actual wishes are identified and carried out. If the decedent was indebted, the probate process can also give surviving relatives some peace of mind. The probate process helps resolve creditors' claims sooner rather than later.
Some Assets Do Not Go Through Probate
Some of the decedent's assets avoid probate by the operation of law. For example, if real estate was owned as a joint tenancy with the right of survivorship, it would remain with the joint tenant following the decedent's death. Thus, if a husband and wife owned the marital residence as joint tenants and the husband died, the surviving spouse would become the sole owner of the real estate.
Beneficiary designations are used to transfer certain types of property. The types of property often transferred by beneficiary designations include:
- Retirement accounts
- Life insurance policies
- Bank accounts with transfer on death or payable on death orders
Keeping beneficiary designations and other legal documents is critical. These documents include the following:
Seeking legal advice from an estate planning attorney if you have any questions about your estate plan is critical. Below you will find information on each state's probate courts.
State-by-State Guide to Probate Courts
The following table provides links to the courts responsible for handling probate in your state. Although some states have courts dedicated entirely to probate, most do not. The table is organized accordingly.
The name of each state also links to Findlaw's state-specific estate planning pages where you can find more information. For a comprehensive guide to state probate laws, see State Laws: Estate & Probate.
Have Questions About Probate in Your State? Talk to a Local Estate Planning Attorney.
The probate process is unified across the country by a common purpose: the orderly distribution of decedents' estates according to their wills or, in the absence of a will, according to state law. Laws vary from state to state. Therefore, whether you are making your own estate plan or are responsible for distributing someone else's estate, a local estate planning attorney can help.
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- Complex probate situations usually require a lawyer
- A lawyer will take these matters seriously and enforce protections
- Get tailored advice and ask your legal questions
- Many attorneys offer free consultations