Probate is the process of proving a last will and testament, which means verifying that the will is legal and the deceased person’s intentions are carried out. Probate also occurs when there is no will and a probate court must decide how to distribute the assets of the deceased’s estate to his or her loved ones.
For small estates, probate may only take a matter of weeks or months. But the probate process for larger estates can take years. Anyone with a valid claim to any assets in the estate may contest the will or file a petition with probate court, which could drag the process out even longer.
Contrary to popular belief, wills don’t necessary help you avoid probate. But the terms of the will guide probate, and they can make the process easier for everyone involved.
Many assets don’t go through probate. Bank accounts, retirement funds, and life insurance policies with a payable-on-death beneficiary are transferred to the beneficiary upon the owner’s death. Assets in a trust are governed separately from probate according to the terms of the trust.
What Actually Happens During The Probate Process?
The probate process begins by determining whether or not it will be contested. If the parents of only one child died without a will, that would lead to an uncontested probate due to there being only one heir to receive assets. When cases are contested, there are usually multiple siblings who want more than their fair share of the assets, or a sibling who believes that the will was written under undue influence. There is no way to know how long a contested probate will take or how much of the estate will be left over after the attorney's fees have been paid. A typical uncontested action will take three to four months, depending on the judge's calendar.
The next step in the probate process is to file the necessary petitions to begin the probate process. If the deceased passed fewer than two years prior, then it will be necessary to advertise in a public newspaper or a general publication so that the creditors will have the opportunity to file a claim with the estate. Under these circumstances, 90 days must be allotted for claims to be submitted by creditors. If it's been greater than two years since the person passed, then creditors will no longer be able to make claims on the estate and the probate could be closed within a few months.
How Long Does It Typically Take For A Probate Matter To Be Resolved?
Uncontested probates can be resolved in fewer than four months depending on the judge's availability. Contested probates can take anywhere from six months to several years.
Can Someone Realistically Try To Navigate Through Probate Without An Experienced Attorney?
The law does not permit pro se representation in probate cases and pro bono cases. In other words, an individual must have a lawyer.
What Result Can Someone Expect Once The Probate Process Is Complete?
Upon the completion of the probate process, the hope is that there is a fair and equitable distribution of assets. If the deceased passed away fewer than two years prior, then at the end of probate, all of the creditors will have been paid and any remaining assets will have been distributed to the heirs.
The probate process is difficult for people because it occurs while they are dealing with the death of a loved one, when emotions are running high, and when they have to determine who will receive the loved one’s property—much of which might hold sentimental value. We try to navigate people through the process in such a way as to help them overcome their grief, move expeditiously, and minimize conflict among the heirs.
When multiple attorneys are involved in the process, there is a better chance of things ending fairly and with minimal conflict. Some attorneys want to get the process done as quickly as possible and resolve any conflicts through mediation or other avenues. Other attorneys, however, want to instigate conflict so as to increase the attorney's fees. Because of this, it is really important for people to be careful about who they choose to have represent them in these types of cases.
How much does probate cost?
It’s possible that probate won’t cost your loved ones anything, especially if you had a small estate and an ironclad will. A good will can save your loved ones thousands of dollars in costs, including attorney’s fees and filing fees. However, in many cases, you can expect to pay many different costs and fees associated with probate. These costs vary by state and are spelled out in your state’s probate code