Probate FAQs

Probate is generally required if a decedent leaves behind an estate that needs to be distributed to their heirs or beneficiaries. Probate allows the decedent’s wishes to be carried out and to insure creditors are paid. If someone dies with assets in their name without payable on death beneficiary provisions, then court involvement is required. However, small estates valued at $50,000 or less may qualify for a simpler, more expedited process. 

The probate process typically takes six to twelve months if the estate is uncontested, with more complex estates taking longer. If there are disputes, creditor claims, or challenges to a will’s validity, the process can take years. .

If someone dies with a will, the personal representative (also known as an executor), must file the will with the probate court, notify the heirs and creditors, manage the estate assets, distribute property, and pay estate debts and taxes. If the person dies without a will, the court will appoint an “administrator” to serve as personal representative. The personal representative must inventory all the estate’s tangible assets and intangible assets, such as bank accounts or real estate, and make sure that the assets are safeguarded during the probate process. It is important that the personal representative act in good faith while managing the estate and act to close the estate as quickly as possible. Personal representatives are entitled to reasonable compensation for work in managing the estate.

Typically, the court will appoint the next of kin who will inherit part of the estate under intestate succession as the administrator of the estate. Intestate succession dictates the order in which estate property is distributed in the absence of a will. The administrator will then inventory all assets, provide notice to all interested parties including creditors, pay debts and expenses for the estate, and provide remaining assets to the heirs. Typically, the heirs are the surviving spouses, children, and the children’s descendants. The administrator has a duty to act in the best interests of the estate.

a. Property owned jointly (without right of survivorship) would go to the surviving owner, so probate is not needed in that case. 

b. Any assets that have named beneficiaries can avoid also probate. These include but are not limited to life insurance policies and retirement accounts.

c. Assets that are in an active trust can avoid probate since the trust directs how the assets are managed or distributed and could contain a beneficiary provision. 

d. Small estates that are valued under $50,000 can take advantage of a truncated small estate affidavit process that is much simpler than conventional probate.

If there are no assets flowing into the estate, formal probate is not necessary, even if there is a will. Retirement accounts, bank accounts, and life insurance can directly transfer to the named beneficiaries. It is important to consider that creditors may be able to reach assets that have passed to beneficiaries if the estate does not have sufficient funds to pay the creditors. If a named beneficiary of an account dies before the decedent, that asset will likely flow into the decedent’s estate and thus require probate.

Typically, the decedent’s estate will cover the fees associated with the probate process. This includes attorney fees, court costs, and reasonable compensation for the executor. If the estate does not have enough liquid assets to cover the probate process, assets such as real property may be sold to cover the costs. 

If an heir of the decedent contests a will, there will be a delay in closing the estate because a court will not distribute any assets until the will contest is resolved. Will contest cases can take years and cost significant attorney fees. Often, a will contest will be resolved in mediation prior to a costly trial. 

The most common way that disputes between heirs are resolved is through mediation where a neutral party helps the heirs reach a mutual agreement outside of court. If an agreement cannot be reached outside of court on how an estate should be distributed, a trial with the probate judge will be required and the judge will decide how the property should be distributed.

Beneficiaries would be able to request a formal accounting, ask the court to remove the personal representative, or file a separate lawsuit to recover the lost assets. If you suspect that assets are missing, consult a probate attorney and document the existing assets. 

Typically, heirs do not personally inherit the individual debts of a decedent or the estate. Debts are paid to creditors from the estate’s assets during the probate process. If the estate does not have enough assets to cover the debt, creditors may go unpaid. However, such an estate is not likely to be probated in the first place.