What Exactly Is Probate Court?

October 25, 2021
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Probate Court

Probate court is a specific type of court that copes with a deceased person’s property and debts.

The probate court judge’s primary responsibility is to ensure that the dead person’s debt holders are compensated, and any remaining funds are dispersed to the appropriate beneficiaries.

What Exactly Is Probate?

Probate is a legal procedure in which a court oversees the distribution of a deceased person’s property. A probate court is a specialised court in many states.

It is known as Surrogate’s Court, Orphan’s Court, or Chancery Court in some states.

The court appoints someone to manage the deceased person’s assets, ensure that all debts are paid in full, and distribute any remaining property to the appropriate beneficiaries.

Without a Will, Probate

When a person dies without a will, the deceased person’s property is distributed to the dead person’s next of kin by the state’s probate law. The law of intestate succession refers to this aspect of probate law.

It specifies the sequence in which the next of kin inherit. For example, a surviving spouse inherits a portion of the decedent’s estate. The law also limits the order in which grandchildren, siblings, parents, aunts and uncles, and cousins inherit.

The specifics differ from state to state. In some ways, the law of intestate succession can be viewed as the “will” that the state creates for you if you do not make your own.

With a Will, Probate

When a person dies with a will (often referred to as the last will), the property is distributed to the people or organisations (such as charities) named in the will.

To probate a will, the court must first determine that the will is valid. Then, if someone challenges the will’s validity, the court will rule on it.

In community property states, unless the spouses agree otherwise, one-half of the property earned by the couple during the marriage belongs to the surviving spouse. They will specify how the decedent’s share of community property and the decedent’s separate property are distributed.

Probate Procedures

The probate process  begins when a petition for probate is filed with the probate court. This is usually carried out by a relative or someone named in a will. If there is a will, a copy of the choice must be filed (unless it has already been filed in one of the states allowing filing before death). Official probate court forms are available in some states.

Related: The Probate Procedure : Four Easy Steps

Following that, the court will issue an order appointing someone to represent the estate. This person is commonly referred to as a personal representative or executor. Still, they may also be referred to as an administrator if there is no will and an executor if there is a will. Most, if not all, will appoint someone to fill that position.

The personal representative is in charge of the estate’s administration. This includes things like:

  • Establishing an estate bank account
  • Arranging for legal notices to be published in a newspaper
  • determining the validity of creditor claims and paying them (especially the funeral costs and final medical bills)
  • Notification of beneficiaries
  • If necessary, sell assets
  • submitting court documents
  • Filing the deceased person’s final tax return
  • Handing over assets to the beneficiaries.

The personal representative frequently hires a probate lawyer to assist with some of these tasks.

The Price of Probate

Probate costs include, among other things, court filing fees, newspaper notice costs, and attorney’s and executor’s fees. If the estate is complicated, there may be additional fees for an accountant. A probate attorney’s prices may be based on an hourly rate, a percentage of the estate’s value, or a combination of the two.

A probate proceeding can take months, if not years, to complete. It can take anywhere from six months to two years for a typical modest estate. The longer it takes, the more expensive it is. If any heirs contest a will, the process becomes more time-consuming and costly.

Probate makes the deceased person’s financial situation public knowledge. This includes the assets’ nature and extent, the person’s debts, and who will receive the help.

Probate Procedures Simplified

Many states have a simplified procedure for estates under a particular value, for specific property types, or when everything is left to a surviving spouse.

Taxes and Probate

Many states impose some tax, usually based on the value of the assets in the probate estate, which is known as an estate tax or an inheritance tax. However, some states only levy the tax if the estate’s value exceeds a certain threshold.

If the estate’s value exceeds a certain threshold, the federal Unified Gift and Estate Tax may apply. The monetary amounts that trigger this tax differ from year to year. For 2015, an estate must have a value greater than $5.42 million for the tax to apply.

Lawyers and Probate

It may be possible to go through probate without a lawyer for relatively simple estates, with or without a will. Many estates, however, are more complicated than they appear. A qualified probate attorney can help you get through the process faster, deal with problems that may arise, ensure taxes are handled correctly and reduce your stress.

Keeping Probate at Bay

Because of much of what has been explained above, many people seek ways to avoid or reduce the amount of their property that will be subject to probate.

This can be accomplished by reorganising property ownership and putting assets in a living trust. In addition, under the federal Unified Gift and Estate Tax, some techniques for avoiding probate may be considered a gift.

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