What Does Probate Law Govern?

Family members might ask you to manage the affairs of a loved one after the recent passing of a family member or friend. Probate deals with the administration of the deceased's property. This includes making payments, selling homes, paying creditors, and distributing money to those who are entitled to it.

Nothing is more important for your family than protecting your financial future with solid estate planning. The following questions and answers about probate will help you choose the right probate process for you.

What is Probate?

"Probate" is a legal term predominantly used with estate law and trust issues, which describes the legal procedures that govern the dissemination of a deceased person’s estate (e.g. assets, property, and personal belongings) upon their death.

The local probate court handles the probate process. This court oversees all probate matters related to the deceased, including establishing validity of the will, assigning executors, and distributing assets to the correct beneficiaries.

The probate process proceeds as follows:

  • If the deceased had a will, the will typically names an individual to be the executor or administrator. The probate court will name an executor if there isn't a will, or someone is not named in the will.

  • The estate's administrator or executor will be appointed. You can file documents with the court to set the date for the probate hearing.

  • The probate hearing will determine if the will is valid. The procedure may change depending on the state's decision and the court's. For more information, please consult the state laws or local court rules.

  • Next, the executor will make sure that all taxes and debts owed to the estate are paid and settled.

  • Any estate assets or items left over will be divided among the beneficiaries. If no will is in place, the state will determine the distribution.

These steps are a basic overview of the requirements for probate. These steps may vary depending on the state laws and local rules for probate procedure. These steps can and will vary depending on state laws, local rules for probate procedures, and other variables relating to the actual estate itself (e.g. size, value, etc.).

Do Probate Laws Vary?

The probate process can last anywhere from several months to potentially several years. There are many factors that will affect the time it takes to complete this process. These include state trust and estate laws, where the property is located, and the value of the estate, if there is a valid will and testament, whether there is any dispute over property or assets, and many other issues that could arise during probate.

Apart from the general factors mentioned above, probate processes vary from one state to another due to differences in state laws and procedures. In some states, the process can take only a few months while in others, it could take as long as three years.

Here are some examples of the probate processes in different states. This will show how it can differ from one jurisdiction to another.

  • California: With proceedings that can take from 8 months to several years, California's probate process is one of the most complicated. It requires compliance with many state laws and local statutes. Estates worth $150,000 or more require probate. Creditors have approximately four months to collect debts. Probate must be filed within 30 days of the death of the decedent.

The court will usually set a hearing date in thirty days. The executor will then have approximately eighteen months for the process. It is important to note that lawyers must bill according to the statutory fees. This means they cannot bill for probate work hourly and their rates are fixed at a flat rate.

  • Florida: There are three types of probate in Florida: formal administration, summary administrative, and disposition with no administration. The first two categories usually fall within the scope of the process. The type of administration will determine the length and requirements. Anyone filing probate must file it with the local circuit court within ten working days of the death of the decedent. Probate takes on average six months.

  • Texas: Texas's probate time limits are determined by the state and local court rules. The probate process can be completed quickly if there is a will or it can take many years if there are no wills or other issues exist.

    In addition, beneficiaries must be notified within 60 days. The executor has ninety days to inform the court that beneficiaries were notified.

  • Illinois: Formal probate in Illinois is not required if the person has sole or joint assets and if these assets exceed $100,000. Formal probate is not required for assets less than $100,000. If formal probate is required, proof must be submitted within forty-two working days. This process typically takes six to twelve months. However, it is possible for it to take longer.

  • Massachusetts: Massachusetts probate can take from a few weeks up to three years. There are other delays and time limitations: notifying creditors within one year, filing tax returns in nine-months or less, the location and size of beneficiaries, along with verifying that the deceased in reality owned the property.

What Assets Does Probate Govern?

It is crucial to realize that probate serves the primary purpose of settling an estate. For example, apart from validating a will and guaranteeing that creditors are paid off, probate is also used to resolve disagreements over assets, to establish where property or assets should go if it is not specified in the will, and if there are any ancillary probate matters that need to be completed for property located in other states.

Only certain properties can be transferred through probate. Certain assets owned by the deceased before his death will not be included in the probate estate. The law or a contract may grant non-probate assets to another person. If a couple has a house in joint tenancy with a right to survivorship (which means that if one spouse dies, their share of the house passes to the living spouse), the house doesn't need to be probated. Other property such as life insurance or retirement accounts passes to the beneficiary that the decedent selected to receive them while he was alive.

These are some common examples of non-probate assets:

  • Assets that are owned or held by a trust.

  • Available for beneficiaries who are named and still living.

  • Property belonging to the community with survivorship rights

  • Joint tenancy property, where there is one surviving joint owner.

  • Annuities, annuities, and retirement plans that include beneficiary designations.

The probate is required to divide assets, regardless of whether the deceased left a valid will.

Is Probate Necessary?

Probate is necessary if the deceased had property that did not automatically pass upon his/her death. Probate might also be necessary if there were owed creditors. Probate should also be opened if there are disputes about who is entitled to inherit property.

If the decedent did not leave any property, probate may not be necessary.

What Happens If There Is No Family Left?

The State will receive the estate if the deceased leaves no survivors. If no family is available, the State will take any money left to pay for burial and funeral costs as well as creditors' and legal, accounting and administrative fees.

Are There Any Probate Issues That Need to Be Handled by an Attorney?

Probate proceedings can be complicated to navigate due to the many legal documents, confusing state laws, and numerous executor fiduciary obligations. An experienced probate attorney can be a valuable asset during the probate process.

An attorney can help you understand the state laws and process, your duties as executor or beneficiary, as well as draft any documents. A lawyer can help you file and represent yourself in court if needed.




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