What is probate?
This is a question that many people, who are planning their estates, ask. Probate is the process where a court distributes a person’s estate after a person dies. This post will give a brief overview of what probate is like. Probate law is different in every state, and each state has its own probate laws. While the information in this post is true for some states, it may not be true in other states. Also, this post does not cover every feature of probate law. Probate law is very complex, and there are laws that may apply to one case but not to others.
How does a probate case begin?
The first step to take in a probate case is to file a petition. The person who wants to be the executor of the estate files a petition with a court (generally, the court in the county where the decedent lived at the time of his death.) If the decedent had a will, then, the petitioner will ask that the judge approve the will. If the decedent had no will, then the decedent is said to have died “intestate” and the petitioner will ask the court to apply the law of intestate succession.
After the petitioner files the petition, the judge should schedule a hearing. Generally, the petitioner will have to notify all potential heirs of the hearing. Any heir will have the right to appear at the hearing and object.
What will happen at the hearing?
If the decedent had a will, then, at the first hearing, the court will determine whether the will was valid. If an heir or other interested party argues that the will was not valid, the court will decide who is correct. If the court decides that the will is valid, the court should appoint an executor. Usually, the court will appoint the person whom the will names as executor.
If the decedent had no will, then the court will order that the heirs of the estate be determined under the laws of intestate succession. Also, most states have laws specifying who has the right to serve as executor if the decedent died intestate.
What does an executor do?
The executor must pay all debts of the estate. The court will require the executor to notify all creditors of the pending probate action, and a creditor will have the right to intervene in the case. Also, the executor must usually file an inventory of the estate. In the inventory, the executor must list all property of the estate.
The executor “stands in the shoes” of the deceased person. The executor may act in the name of the estate. The executor may sell property of the estate. If all heirs consent to the sale of property, the executor may generally sell the property without court approval. If the heirs do not consent to sell the property, then the court will have to approve the sale of the property.
If someone owed the decedent money, the executor may collect the money on behalf of the estate. The executor may file a lawsuit to collect the money. Also, if the decedent had a claim that could be grounds for a lawsuit (such as a person injury or wrongful death claim) the executor may file suit. If the decedent had filed a lawsuit that was pending at the time of his death, or if the decedent was a defendant in the lawsuit at the time of his death, the executor may be substituted as a party to the lawsuit.
Obviously, being an executor is a position of great responsibility. Many state laws restrict certain persons (such as convicted felons, minors, or incompetent persons) from serving as executor. Also, if an heir has reason to believe that a proposed executor will not act honestly or competently, and the objecting heir can present evidence of this, the court may decline to appoint the person as executor. The court may also remove an executor if the executor acts irresponsibly.
How does a probate end?
When all debts of the estate have been paid, and the executor does not need to transact any business on behalf of the estate, the estate is ready for closing. The executor must then file a “final accounting” with the court, and the judge will schedule a hearing on the final accounting. The executor must then notify all heirs of the hearing. At the hearing, if there are no objections, the court should order that the remaining property in the estate be distributed to all heirs.
If the will is valid, the court will likely order that the estate be distributed as the will directs. If the will is not valid, or if the decedent had no will, the court should order that the estate be distributed according to the laws of intestate succession.
If the probate takes a very long time, then the court may order a partial distribution before the estate closes. That way, the heirs will not have to wait as long to receive their share.
How long does probate take?
In general, the simplest type of probate case takes around three to nine months. If the probate is very complicated, it can take many years. (For example, the probate of billionaire Howard Hughes took over three decades.)
How much does probate cost?
The price for even a simple probate usually costs a few thousand dollars. If a probate is complicated, or if it is contested, the probate can be much more expensive.
What does probate mean for your estate?
If you don’t have a will, the state will distribute your property under the laws of intestate succession. Most state intestate succession laws say that your estate will go to certain relatives in an order of preference that state law determines. If you don’t want certain relatives receiving your property, then you should prepare a will so that the court will distribute your property the way you want.
Also, because probate can be complicated, expensive, and time-consuming, many people look for ways to avoid probate altogether. Common probate-avoidance devices include trusts, joint tenancies with right of survivorship, transfer on death deeds, and gifts made within your lifetime. If you believe you may want to avoid probate, speak to an attorney or financial advisor on whether you should avoid probate, and the best way for you to avoid probate.
Kyle Persaud founded Persaud Law Office to assist the residents of Bartlesville, OK, and surrounding areas, with a wide range of legal needs. As a civil litigation attorney in Bartlesville, OK, Mr. Persaud deals with a wide variety of family law issues, including estate planning, divorce, paternity, adoption, guardianship, and immigration. Mr. Persaud received his B.A. from Oklahoma Wesleyan University and his law degree from the University of Tulsa.