Wills & Probate

The probate process is not well understood by many but can have real effects on those that stand to inherit an estate at the time of a loved one’s death. If you do not plan your estate correctly, your loved ones, such as your dependents and spouse, could be put in a financially constricting situation at the time of your death. Not all estates are subject to the probate process. Living trusts, for example, can be created in order to avoid this process. Knowing about probate and how it can effect your surviving family members at the time of your death is an important part of being able to understand what you need to do in terms of planning your estate.

What is a probate and when is it necessary?

Probate is defined as the court-supervised administration of an estate. It is generally required for those whose estate has a fair market value of more than $100,000. Not included in the estate valued for probate is property that is being transferred to a spouse, trusts, or life insurance or retirement accounts for which there are beneficiaries, defined as those under contractual benefits. Probates are not dependent on whether or not a person created a will.

How long do probate proceedings typically take?

There is no easy answer to this question. The amount of time probate takes depends on the complexities of your estate. Typically, probate takes at least six months to complete, and that is under the best of circumstances. This is because the probate process includes required notices to be served, court hearing to occur and representatives to be appointed. In addition, a minimum of four months is required by law for creditors to present their claims against the estate.

What property is subject to probate proceedings?

The property that is subject to probate proceedings depends on how it is titled, the nature and value of the property and whether or not there is a surviving spouse. Only property for which a person held the title at the time of their death can be subjected to probate. Some people choose to create a living trust in order to put their property into. They then pass the title of their property onto the trust, which is not subject to probate. A good lawyer familiar with probate law, can advise you on the best way to plan your estate to avoid costly and time consuming probate proceedings.

Do inheritors receive income from the estate before the completion of probate proceedings?

While beneficiaries must wait until probate proceedings are complete before receiving the full and legal title to their inheritance, it is possible for them to receive a regular allowance before the proceedings are complete. In many cases, the surviving family members are in need of money from the estate in order to cover their daily expenses as well as expenses associated with the passing of their loved one. A lawyer can assist in petitioning the court for consent for payments for spouses and dependents before probate proceedings are complete.