What is Probate/Estate Administration?
When a loved one passes away, his or her estate often goes through a court-managed process called probate or estate administration where the assets of the deceased are managed and distributed. If your loved-one owned his or her assets through a well drafted and properly funded living trust, it is likely that no court-managed administration is necessary, though the successor trustee needs to administer the distribution of assets of the deceased. The length of time needed to complete the probate of an estate depends on the size and complexity of the estate and the local rules and schedule of the probate court.
Steps in Probate
Every probate estate is unique, but most involve the following steps:
- Filing of a petition with the proper probate court.
- Notice to heirs under the Will or to statutory heirs (if no Will exists).
- Petition to appoint Executor (in the case of a Will) or Administrator for the estate.
- Inventory and appraisal of estate assets by Executor/Administrator.
- Payment of estate debts to rightful creditors.
- Sale of estate assets.
- Payment of estate taxes, if applicable.
- Final distribution of assets to heirs.
FREQUENTLY ASKED QUESTIONS
In order to contest a Will, one has to have legal “standing” to raise objections. This usually occurs when, for example children are to receive disproportionate shares under the Will, or when distribution schemes change from a prior Will to a later Will. In addition to disputes over the tangible distributions, Will contests can be a quarrel over the person designated to serve as Executor.
Certain types of assets, sometimes referred to as “non-probate assets,” do not go through probate. These include:
•Property in which you own title as “joint tenants with right of survivorship”. Such property passes to the co-owners by operation of law and do not go through probate; provided there are living co-owners.
•Retirement accounts such as IRA and 401(k) accounts where there are designated beneficiaries, provided the beneficiaries survive the retirement account owner/participant.
•Life insurance policies payable to designated beneficiaries, provided the beneficiaries survive the insured.
•Bank accounts with “pay on death” (POD) designations or “in trust for” designations, provided the named beneficiaries survive the deceased account owner.
•Property owned by a living trust. Legal title to such property passes to successor trustees without having to go through probate.