Frequently Asked Questions About Probate

What is probate?
Probate is a court-supervised process that takes place after someone dies. Probate sorts out the transfer of the deceased person’s property. It calls for proving in court that a deceased person's will is valid, identifying and inventorying the deceased person's property, having the property appraised, paying debts and taxes, and distributing the remaining property as the will (or state law, if there's no will) directs. The probate process requires paperwork and court appearances by lawyers. The estate pays lawyers and court fees.

What happens during the probate process?
The deceased usually names an executor to manage his affairs. The courts may appoint someone in case it hasn’t been done. While people may hand out property in their wills, the state’s laws and creditors’ claims may complicate things in court. The more complex and larger the estate, the longer this process will take. The executor must also show that the deceased followed the law in writing his will.

What happens if a will or probate process is contested?
The probate process is usually contested by one of the heirs. Typically they feel entitled to a larger share of the property. It is the responsibility of the executor or the court-appointed administrator to defend the will in probate court.

Why do I need a will?
A will shows how you want your property distributed after your death. If a will has not been written, your family may be forced to deal with costly litigation.

Who needs a will?
Every adult, whether single or married, who owns property should create a will. Click here to find an estate planning lawyer in your area.

What is the job of the executor?
The executor, who is named in the will, handles the probate process. This job usually goes to a close relative who inherits most of the deceased person’s assets. If no one is appointed, the courts may appoint an administrator. The executor tracks down property and accounts to pay creditors, debts, taxes and beneficiaries.

What are the different kinds of probate?
Supervised probate is the most formal and expensive. The court must approve each transaction. Unsupervised or independent probate is simpler and cheaper. The court may play a small role or none. This form of probate is used for estates that exceed the limit for small-state administration. All beneficiaries must agree to use this type of probate.

Small estate probate is the simplest and fastest probate available. It’s not available in every state and can only be used on estates ranging from $1,000 to $100,000. Property can be transferred by affidavit.

Does all property have to go through probate?
Some property can avoid the probate process. Property or other assets held in trusts may be exempt. To talk to an estate planning lawyer in your area, contact us now.

Should I plan to avoid probate?
Probate is rarely a benefit. It usually costs money and time. The process only makes sense if the estate faces complicated problems. If you’re young and in good health, it may not make sense to plan to avoid probate court. Any plans will have to be redone when you’re older. Planning to avoid probate court makes more sense for people who are older than 50. And for people who own a good deal of property.

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	Did You Know?
	Probate Is Handled In Court Probate cases normally occur in state and county court where the deceased permanently lived at the time of his or her death. In different states such courts may go by different names. Some are simply called the Probate Court. In New Yorkthey are called the Surrogates Court and in California they are called the Superior Court, Probate Division. The probate court will normally handle all the personal property the deceased owned, plus all the real estate the deceased owned located in that same state.