Probate: How an Estate is Administered in Court

explaining the probate process

To process a decedent’s will it must go through a function called probate, a method by which judicial officials, including probate judges, process property. State laws may vary but the general process stays genuinely the same across the country. Probate is the process of proving wills for decedents. A probate judge will also oversee cases where the deceased person did not prepare a will, known as dying intestate. Depending on the size of the estate, probate can conclude quickly or take more than a year. If an estate’s value is below a certain amount, probate may become streamlined regarding property transfer. Most probate issues are county-based decisions. Aside from property, a probate court will also render judgment regarding competency and guardianship cases. However, the primary responsibility of a probate judge deals with estates.

Probate When the Decedent had a WillProbate Filings Court Document Estate Planning

Opening a Probate Case with the Court

The estate’s executor (called a personal representative in Florida) will file the decedent’s will with the probate court. The court will make a finding as to the will’s legality and makes sure no one is bringing objections to the will. For example, a beneficiary may claim that the decedent was experiencing undue influence or coercion when making the will. In some cases, the judge may declare it a case of a contested will. Without any objections to the will, the named executor receives approval and can move forward to open an estate bank account and administer the estate.

Notification of Interested Parties

The executor will typically place notices in newspapers so that creditors of the decedent are made aware of the death. Other parties interested in the decedent’s estate include any possible heirs as well as creditors. The executor must contact all beneficiaries named in the will if possible. If the executor cannot locate all the beneficiaries, sometimes private investigators might be needed. Creditors have a specific time frame to submit any claims against the estate to the probate court, usually somewhere between two to nine months.

Estate Asset Inventory

The executor will inventory estate assets, both physical and financial, and assess the worth on the date of the decedent’s death. The probate judge and beneficiaries will receive the inventory filing information unless the state allows the beneficiaries to waive filing this information. Taking an estate’s inventory is often time-consuming as well as a lot of work. Some physical properties may require a sale, such as a home. Positions of stocks and bonds may also require selling or other administrative action to divide among beneficiaries. Executors will typically receive compensation for this work by inheritance or a statement in the will addressing the form of compensation to receive. If an estate is large enough, an executor may hire a professionals for assistance.

Asset Distribution

Upon inventory completion, the probate judge authorizes the distribution of assets as long as the will is uncontested. At this time, the creditor’s debt, the debts of managing the estate, and minor children’s inheritance become actionable. All debts are to receive payment from the estate, even if it requires the sale of assets. The executor must file final taxes for the decedent, both federal and state.

Terminating the Estate

After the estate’s distribution is complete to the heirs, the probate judge ensures all creditors receive payment and often then closes the estate. Although the estate is officially closed, it remains a part of the public record.

Probate Without a Will

If the decedent dies intestate (without a will), these same general steps apply. However, the process is more complex, and the probate judge has considerably more input and oversight. The judge will appoint an administrator (who serves a role similar to an executor) to inventory the estate and post newspaper notices for creditors and other interested parties. In the absence of a will, the law of intestate succession applies. Each state identifies the order in which the decedent’s next of kin--the heirs-- can inherit; they receive notice, assets distributed, and the estate closed. In Texas, often a formal process called a determination of heirship is necessary, which can be costly and time-consuming

Contesting a Will. Two people staring at each other across the table from one anotherProbate When Someone Challenges the Will

If one or more beneficiaries (or non-beneficiary) contests the will, the judge’s role becomes more significant and very involved. The judge will review the evidence and listen to the arguments of the contesting persons. This process can include discovery, multiple hearings, numerous motions, and responses to motions This can take years before concluding, usually entailing significant attorney fees. Eventually, a probate judge will issue rulings and opinions and can settle the contested will. At this point, the will is actionable, taking the general steps outlined above.

Non-Probate Assets

Life insurance policies or retirement accounts that have beneficiaries named do not fall under the purview of the judge, as these are distributed directly to beneficiaries without probate. However, if a minor is named as a beneficiary, a guardian of that money will have to be appointed by the probate court.

Let's plan the future of your estate to make the probate process for your loved ones as easy as possible. Contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600.

Information about Harris County probate courts in Houston, Texas can be found here. Duval County in Jacksonville, Florida information is here.

Attorney Jana McCreary

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Houston Estate Planning and Elder Law Attorney Jana R. McCreary has been an attorney for over eighteen years, a career move she made after working for over a decade with adults and children with intellectual disabilities and mental illness. Graduatin… Read More

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