Who Initiates Probate?

How Probate Works

Probate is the analysis and transfer administration of estate assets previously owned by a deceased person. When a property owner dies, his assets are commonly reviewed by a probate court. The probate court provides the final ruling on the division and distribution of assets to beneficiaries. A probate proceeding will typically begin by analyzing whether or not the deceased person has provided a legalized will.

In many cases, the deceased person has established documentation, which contains instructions on how their assets should be distributed after death. However, in some cases, the deceased does not leave a will.

Probate with a Will

A deceased person who has provided a will is known as a testator. When a testator dies, the executor of the Will is responsible for initiating the probate process. Typically, the executor is a financial advisor. The Will can also provide details on a specified executor.

The executor is responsible for filing the Will with the probate court. States can have different rules for the timeframe in which a will must be filed after death. Filing the Will initiates the probate process. The probate process is a court-supervised proceeding in which the authenticity of the Will left behind is proven to be valid and accepted as the true last testament of the deceased. The court officially appoints the executor named in the Will, which gives the executor the legal power to act on behalf of the deceased.

The Executor

If the Will designates an executor, then the executor files a Petition for Probate (Form DE-111) with the probate court (again, in the county where the decedent resided). If there is no will, or the Will does not designate an executor, then “any interested person” over 18 years old may submit the same form, requesting to be appointed the administrator (functionally, this is the same as the executor – both of which are considered “personal representatives”) of the decedent’s estate. Note that being named executor does not obligate you to act as executor – you can decline, and someone else can Petition to become the personal representative. Also, if the person named executor fails to file a Petition within 30 days of knowledge of the decedent’s death, they may be deemed to have waived the right to appointment.

If the Petitioner is a nonresident, s/he will likely be required to post a bond.

When the Petition gets filed, the probate clerk will set a hearing date. The Petitioner must give notice of the hearing to anyone who may have the right to get some part of the estate, plus surviving family members, even if there is a will and they are not named in it. The notice may be mailed, but not by the Petitioner – it must be mailed by any other adult who is not a party to the case.

The Petitioner must also arrange for notice of the Petition to be published in a newspaper of general circulation.

The court’s “probate examiner” reviews the case paperwork before the hearing to see if it was done correctly. S/he will issue “defects” if there are problems. Once all the paperwork has been reviewed by the examiner and corrected (if necessary), at the hearing, the probate judge will decide whether or not to appoint the Petitioner as the personal representative of the estate.

Absent any objections; the Petitioner will generally be appointed as a personal representative. However, other individuals may file their Petition, and the Judge will need to select between them or may appoint multiple personal representatives. Further, there are some circumstances under which the Judge will find it appropriate to establish a public administrator.

A Will typically designates a legal representative or executor approved by the court. This person is responsible for locating and overseeing all the deceased’s assets. The executor has to estimate the estate’s value by using either the date of death value or the alternate valuation date, as specified by the Internal Revenue Code (IRC).

Most assets that are subject to probate administration come under the probate court’s supervision in the place where the decedent lived at death. The exception is real estate. Probate for real estate may need to be extended to any counties in which the real estate is located.

The executor also has to pay off any taxes and debt owed by the deceased from the estate. Creditors usually have a limited amount of time (approximately one year) from the date of death to make any claims against the estate for money owed to them. Claims rejected by the executor can be taken to court, where a probate judge will have the final say on whether or not the claim is justified.

The executor is also responsible for filing the final, personal income tax returns on behalf of the deceased. Any pending estate taxes can also come due within one year from death. After the estate inventory has been taken, the value of assets calculated, and debts paid off, the executor will seek authorization from the court to distribute whatever is left of the estate to the beneficiaries.

If a deceased person’s estate is insolvent, their debts outweigh their assets, and an administrator will likely choose not to initiate probate. In general, individual states may have their rulings on a statute of limitations for processing a will through probate. States can also have thresholds for probate filings.

Probate Without a Will

When a person dies without a will, he is said to have died intestate. An intestate estate is also where the Will presented to the court has been deemed invalid. The probate process for an intestate estate includes distributing the decedent’s assets according to state laws. If a deceased person has no assets, probate may not be necessary.

In general, a probate court proceeding usually begins with the appointment of an administrator to oversee the estate of the deceased. The administrator functions as an executor, receiving all legal claims against the estate and paying off the outstanding debts.

The administrator is tasked with locating any legal heirs of the deceased, including surviving spouses, children, and parents. The probate court will assess what assets need to be distributed among the legal heirs and how to distribute them. The probate laws in most states divide property among the surviving spouse and children of the deceased.

If an individual has no will and no heirs, any remaining assets go to the state.

Asset transfer to the government is known as escheatment. States typically have a time-frame for claiming any assets by an heir who may step forward.

Spouses as Joint Property Owners

Community property laws can recognize both spouses as joint property owners in an intestate proceeding. In effect, the distribution hierarchy typically starts with the surviving spouse. If unmarried or widowed at the time of death, assets are usually divided among surviving children. After a spouse and children are considered, other relatives may also be deemed appropriate for distribution.

Close friends of the deceased will not usually be added to the list of beneficiaries under a state’s probate laws for intestate estates. However, If the deceased had a joint account with the right of survivorship or owned property jointly with another, the joint asset would automatically be owned by the surviving partner.

Is a Probate Always Required?

It is crucial to know whether a probate is required following the death of an individual. The probate process can take a long time to finalize. The more complex or contested the estate is, the more time it will take to settle and distribute the assets. The longer the duration, the higher the cost.

Probating an estate without a will is typically costlier than probating one with a valid Will. However, the time and cost required for each are still high. Also, since the proceedings of a probate court are publicly recorded, avoiding probate would ensure that all settlements are done privately.

Different states have different laws concerning probate and whether probate is required after the death of a testator. Some states have a specified estate value, which involves probate. For example, probate laws in California hold that if the estate’s value is less than $166,250, then probate may be skipped. If an estate is small enough to bypass the probate process, then the estate’s asset may be claimed using alternative legal actions, such as an affidavit. Typically, if a deceased person’s debts exceed their assets, probate is not necessarily initiated, and alternative measures may be taken.

Some assets can bypass probate because beneficiaries have been initiated through contractual terms. Pension plans, life insurance proceeds, 401k plans, medical savings accounts, and individual retirement accounts (IRA) that have designated beneficiaries will not need to be probated. Likewise, assets jointly owned with a right of survivorship can bypass the probate process.

Another popular way to bypass probate is through the use of a trust.

Trust funds can be orchestrated to pass immediately to designated inheritors upon death.

Overall, minimizing costs associated with the probate process can be prudent. Accumulated expenses can include court fees, professional service hours, and administration costs. Having an easily authenticated will is one of the most common ways to quickly move through a probate process and efficiently distribute assets appropriately.