Probate is the legal process of opening an estate, proving a person's will to be valid (if applicable) and having a court supervise the distribution of the estate's assets.
The probate process is sometimes described as the process of distributing someone's assets after their lifetime. While asset distribution is part of probate, the entire process involves much more than the distribution of assets by a personal representive. In fact, asset distribution only occurs toward the very end of the process after many other steps have been taken.
What are the major steps in the probate process?
- Gather information about decedent, their family, assets and estate plan
- Conduct initial inventory and secure property
- Forward the decedent's mail and email
- Notify Social Security Administration and retirement plan administrator
- Hire an attorney
- Petition court to open a probate case
- Send and post notice to creditors, beneficiaries and heirs
- Determine value of estate's property
- Process creditor's claims
- Pay debts and expenses
- Determine amount of Medicaid lien, if any
- Distribute personal property as directed
- File tax returns
- Prepare final accounting
- Request court approval of final accounting
- Distribute remaining assets to beneficiaries
- Petition court to close estate
What are the advantages and disadvantages of probate?
|Ensures all debts, fees and taxes are paid
|Total cost of 3-8% of estate's value
|Establishes clear title to assets transferred to heirs
|Takes 12-18 months to complete
|Provides a forum to resolve family disputes
|Court file (assets and beneficiaries) is public information
|Provides a forum to resolve creditor and claim disputes
|Judge has control of the process
|Limits time for creditors to file claims
What about a will dispute?
The probate process can be disrupted and substantially extended when a family member is unhappy about their inheritance or disinheritance. In this situation, the will could be challenged by that family member through a will dispute.
A will dispute typically happens when a child is disinherited or when there are sudden changes to the will's asset distribution provisions shortly before the decedent passes away.
A will may be disputed for a number of different reasons, and that challenge can be based on a variety of different legal claims, including validity (an issue with document's text or execution), undue influence, duress and lack of capacity. Any dispute will delay asset distribution and increase expenses. A will dispute can consume all of the estate's assets, leaving the beneficiaries with nothing.