Probate

Understanding

Probate

What probate means for you

Probate is the legal process through which a deceased person's estate is administered and distributed to their heirs and beneficiaries. It involves validating the deceased's will (if one exists), paying off debts and taxes, and transferring ownership of the deceased's assets according to the terms of the will or, if there is no will, according to state law.

At SMITH | ASHCRAFT, we provide comprehensive probate services to guide you through this process, whether you're the executor of an estate, a beneficiary, or someone with a potential claim. We help you navigate the complexities of probate law and ensure the estate is handled properly and efficiently.

The Probate Process: Key Steps

Filing the Will and Petitioning the Court

• If there is a valid will, the first step in the probate process is filing the will with the probate court. The executor named in the will must also petition the court to be officially appointed as the personal representative of the estate. If there is no will (intestate estate), the court will appoint an administrator to manage the estate.

Notifying Heirs and Beneficiaries

• Once the court accepts the will and appoints an executor or administrator, notice must be given to all heirs, beneficiaries, and interested parties. This ensures that everyone involved is informed of the probate proceedings and has the opportunity to make any claims or contest the will if necessary.

Inventory and Appraisal of Assets

• The executor is responsible for identifying, locating, and valuing the assets of the deceased person’s estate. This can include real estate, bank accounts, investments, personal property, and more. The assets are typically appraised to determine their value at the time of the decedent's death.

Paying Debts and Taxes

• The next step is for the executor to settle any outstanding debts, bills, or taxes owed by the estate. This may involve notifying creditors, paying off loans or credit card balances, and filing the decedent’s final income tax returns. If there are not enough assets in the estate to pay all debts, the estate may need to be administered according to specific laws that govern debt repayment.

Distributing the Estate

• Once debts and taxes are paid, the remaining assets are distributed to the beneficiaries as outlined in the will or, if there is no will, according to state laws of intestate succession. This can involve liquidating assets, such as selling property or stocks, or distributing physical assets directly.

Closing the Estate

• After the assets have been distributed, the executor or administrator must file a final accounting with the court, showing that all debts have been paid and assets have been properly distributed. Once the court approves the accounting, the estate is closed, and the probate process is complete.
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Types of Probate:

Formal Probate

• Formal probate is the traditional process that involves court supervision. This is generally required for estates with significant assets, complex issues, or disputes between beneficiaries. It can take several months to years to complete, depending on the complexity of the estate and the presence of any disputes.

Simplified Probate (Small Estate)

• If the estate is small enough, many states offer a simplified probate process or even allow the estate to be handled without going through court. This process is quicker and less costly, but it typically only applies if the estate’s value falls below a certain threshold.

Summary Probate

• Summary probate is another form of simplified probate, typically for small estates, that does not require a full court process. It is often quicker and easier than formal probate, and may be available for estates where the total value of the assets is below a certain limit defined by the state.

Independent Administration

• Some states allow for an independent administration process, in which the executor or administrator does not have to go through the court for every step. The executor is trusted to manage the estate without needing constant court approval, making the process faster and more flexible.

Intestate Probate

• If someone dies without a will (intestate), the estate is administered according to the state's intestate succession laws, which determine who inherits the estate based on family relationships. This process can lead to disputes if relatives disagree about who should inherit or if the deceased person had multiple heirs.

Common Probate Issues and Disputes

Will Contests

• One of the most common disputes during probate is a challenge to the validity of the will. Family members or potential beneficiaries may argue that the will was forged, made under duress, or that the decedent lacked the mental capacity to execute it. In such cases, the court may need to resolve the dispute.

Executor Mismanagement

• Executors have a fiduciary duty to manage the estate in the best interests of the beneficiaries. If an executor mismanages estate assets, is biased toward certain beneficiaries, or acts inappropriately, beneficiaries may take legal action to have the executor removed or to challenge the estate’s administration.

Disagreements Over Asset Distribution

• Disagreements over the interpretation of the will or trust may occur, particularly if the language is unclear or beneficiaries disagree with how assets should be divided. Family members may also argue if they feel the will or trust was unfair.

Creditor Claims

• Creditors may file claims against the estate during probate if the deceased owed money. There may be disputes if creditors try to claim more than what the estate is worth, or if the executor disagrees with the validity of the claim.

How to Avoid Probate Disputes:

Properly Draft Your Will and Trust

• One of the most effective ways to avoid probate disputes is to ensure your will and estate plan are clear, valid, and up-to-date. Work with an experienced attorney to ensure your documents reflect your wishes and that the estate can be administered smoothly.

Communicate with Your Family

• Open communication about your estate planning decisions can help avoid misunderstandings or conflicts among family members after your death. Letting beneficiaries know your wishes and discussing the terms of your estate plan can reduce the likelihood of disputes.

Choose a Trust

• Using a trust to transfer assets can sometimes help avoid the lengthy probate process. Trusts allow assets to pass directly to beneficiaries without going through probate court, which can save time, reduce costs, and provide more privacy.

How SMITH | ASHCRAFT Can Help with Probate

At SMITH | ASHCRAFT, we offer expert legal guidance for individuals navigating the probate process. Whether you're an executor, administrator, or a beneficiary, we’ll help you understand your responsibilities and rights and ensure the estate is handled in accordance with the law. Our attorneys are experienced in managing probate disputes, providing solutions to complicated estate issues, and assisting with the smooth transfer of assets.

Contact us today to learn more about how we can assist you with probate matters and ensure that your loved one's estate is properly administered.