Probate refers to the legal process of recognizing a will and appointing an executor to administer the estate of the deceased. The administrator will distribute assets to the intended beneficiaries and ensure that any other conditions of the will are met. Setting up a will and designating an administrator before you pass will ensure a smooth transition for friends and family members. Sitting down with your lawyer to go over your final wishes and how your assets will be distributed can save your family from stress and complex emotions.
If a loved one doesn’t set up a will before they pass, you may find yourself going through probate court in order to resolve debts and determine proper distributions. Even if someone has a will, there may be situations where probate court is necessary.
How Does Probate Work?
The process is a court-supervised process that helps administer the estate and property to those designated in a will. It is not a very long or expensive process, but it will vary by state and their probate laws. Most people want to try to avoid probate by putting property in a living trust, but these state laws may require probate anyway. A living trust can never really avoid probate, but having a clear will and properly following tax laws will help you avoid delays during probate cases.
The following steps are typically involved in all probate and estate cases.
- Filing a petition
- Notifying heirs and creditors
- Inventorying the estate
- Paying debts and taxes
Common Challenges With Probate And Estate Cases
While most probate cases are a straightforward process, there are some challenges that can occur in specific situations. When heirs or creditors can not come to an agreement, legal intervention may be needed.
Will Contests
Challenging the validity of the deceased person’s will is a common problem that will extend the probate process. If someone presents claims of lack of capacity, undue influence, or fraud, they will need to be discussed in the court system. Only individuals with financial interest or those recieving beneficiaries are allowed to contest.
Disagreements Among Beneficiaries
The most common problem with probate or estate cases is disagreements among beneficiaries on who should receive what. If parties can not agree on the distribution of assets, this can significantly delay the process or result in a litigation process.
Creditors’ Claims
When money is owed to creditors, and someone dies without settling these debts, the creditors may file a case against the person’s estate. If liquid assets in the estate will not cover the debts, heirs of the estate may be forced to sell property or give up other assets. Settling these debts can take away from what beneficiaries expected to receive and will lengthen the probate process.
Complex Assets
If someone owned a small business, had real estate across multiple states and jurisdictions, or had other complicated finances, they could extend the completion of the probate case. These assets may require special regulations or distribution factors, rather than just distributing them to heirs. Taking time to settle the estate may require additional professionals for complex assets.
Legal Expertise From WW Partners
Even the most complex cases or estates can be handled by the team at WW Partners. Our lawyers can help guide you through every hurdle and represent you during any court proceedings so you can handle estate administration with confidence. Dealing with real estate, securities, businesses, trusts, and estates can be overwhelming to the average person, which is why having a trusted attorney can help you turn these issues into opportunities. Each member of our team has a wealth of knowledge and experience to bring to the table. Reach out to us and see how we can help you!
Client-Focused & Results-Driven
Frequently Asked Questions
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Is Probate Always Required?
Probate is not always necessary in estate administration due to multiple factors. The size of assets, whether the deceased had a will, and whether disputes are presented will all determine if the case needs to go through probate court. Probate court is not often required for most estates where the deceased had a clear will. Certain property is exempt from probate court, including jointly owned property, payable on death accounts, life insurance, and retirement accounts.
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What Is The Difference Between Testate And Intestate?
Testate- a party dies with a valid will, allowing their wishes to be followed and assets to be distributed easily. Intestate- party dies without a valid will, forcing the state to pick an executor, where the deceased’s wishes may not be taken into consideration. Testate will have a designated administrator who will help distribute the assets as the deceased would have liked, while also following state laws.