The Probate Process

What Is Probate?

Simply put, probate is a court-supervised process that oversees the transfer of an individual’s assets, or estate, after death. Probate is a complex, tedious and time-consuming process that is riddled with delays. Heirs almost always underestimate how long it will take to receive their inheritance from an estate in probate. On top of the delays, there is often a lack of clarity on how the process works.

As an heir, you should understand some facts regarding your role in the probate and inheritance process. First, contrary to popular belief, the attorney handling the probate estate represents only the personal representative (PR) — or the executor, executrix or administrator of the estate. The estate attorney does NOT represent all other heirs to the estate. Because of this, the attorney is under no obligation to take or return any phone calls or provide general information or legal advice to heirs other than the PR.

Second, the probate process typically goes through several drawn-out steps before distributing a penny to the rightful heirs. Numerous factors can influence and lengthen the probate process, such as estate size, number of heirs, absence of a will, outstanding debts and more. The probate process is different in each state and can take anywhere from a few months to years, depending on the state laws and the estate itself. These circumstances typically force heirs to wait even longer to access their inheritance.


How Does Probate Work?

Remember, all estates go through the probate process slightly differently. This breakdown showcases what you might expect from a fairly standard probate procedure.

Step One

The first step in the probate process is to file the petition for probate, the original will and any legal alterations. The Notice of Petition to Administer Estate also gets filed during this stage. In this case, the “petitioner” is usually the proposed personal representative.

Having received these forms, the court clerk will set a hearing for 45 to 60 days after the filing date. At this point, the law requires notifying all the people named in the will. At this stage, you will first receive notice of your inheritance. A local newspaper also publishes the Notice of Petition to Administer Estate to alert the decedent’s creditors so that they can file their claims with the court.

At the hearing, if no one has filed an objection to the probate, the court will admit the will to probate and appoint the PR. After this appointment, the court will issue Letters Testamentary or Letters of Administration, which the PR uses to prove that they have the authority to act on behalf of the estate.

Step Two

The second step in probate consists of an ongoing process of filings, notifications and applicable settlements. The following is a brief list of tasks to complete.

  • Identify all of the assets owned by the decedent at the time of death.
  • File an Inventory and Appraisal, which values the estate’s assets, both real (land) and personal.
  • Notify the Department of Health Services.
  • Liquidate all of the estate’s assets.
  • Pay any debts, claims or taxes that are due and object to claims that should not be allowed.
  • Settle all financial and property disputes.

Step Three

The final step in the probate process consists of closing the estate and distributing the remaining assets to the heirs. If all goes smoothly, the final actions in the probate will be as follows:

  • Obtain a court order of distribution.
  • Close the estate accounts.
  • Make final distributions to the heirs.
  • Obtain receipts from the heirs for the distributions made to them.

As you can tell, the probate process is lengthy and complex. The personal representative can choose to retain a probate attorney to guide the estate through this complicated process. However, even with an attorney’s help, the probate process can still take 12 to 18 months and, in many cases, even longer.

So Why Does an Inheritance Go to Probate?

There are many reasons the probate processes occur, and each inheritance is different. Unfortunately, if the decedent owned property that doesn’t designate beneficiaries or isn’t arranged to avoid probate, their estate must legally go through the probate process before distributing it to heirs. Depending on estate size, will, individual items and other factors, there is a high possibility any inheritance will go to probate. However, some assets are almost always subject to probate:

  • Cash or cash accounts without a beneficiary
  • Real estate
  • Vehicles
  • Personal items and valuables such as jewelry
  • Assets with tenants in common
  • Items that allow for beneficiary naming but do not have beneficiaries listed
  • Any other assets owned solely by the deceased or without a beneficiary listed

Each state has different laws surrounding probate and wills, but nearly all states have monetary caps to decide when an inheritance must go to probate. 

Some assets typically do not go through probate:

  • Bank and financial accounts with a designated beneficiary named
  • Trusts and most assets within them
  • Assets with joint ownership and right of survivorship
  • Insurance policy proceeds
  • Most assets with a transfer-on-death registration

If the inheritance you deserve does not fit the above situations, you will have to go through probate, and it will take a much longer time to process. If this is the case in your inheritance and you need the money today, contact Inheritance Funding Company today to review your options.

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