The Process of Probate

Probate showing time, expense, and court involvement

When someone passes away, there is an often-lengthy legal procedure. This involves a court overseeing the process of authenticating the will, reviewing the deceased’s assets, paying outstanding debts, and distributing the remaining property to the deceased person's beneficiaries or heirs. This is the probate process. Probate law varies by state, but there are steps in the process that are common.

Probate with an Executor

The executor is the person named in a will to handle the estate after the will-maker's death. This person is responsible for handling the assets, debts, and estate of a deceased person. In Florida, this person is called the personal representative.

An executor can be a family member, a financial advisor, or any person the will-maker deemed capable of administering the estate as long as the person qualifies under state law. For example, in Florida, the executor must either be a family member or live in the state of Florida; this is not the rule in Texas. In both Texas and Florida, the executor cannot have a felony conviction. If the named executor is not qualified, or if there is no will, state law defines who can be appointed in this role.

Probate filings court document estate planning legal proceedingsIt is the executor's responsibility to initiate the probate process. The executor, almost always through her attorney, files the will with the probate court, which initiates the probate process. After the court approves the will as valid, the court officially appoints the executor as named in the will, giving the executor legal authority to act on the estate's behalf.

The executor then carries out the probate process. The executor's function is to locate and oversee all of the estate's assets and to determine each asset’s value. Usually the majority of the deceased's assets are subject to the probate court, which is typically where the deceased lived at the time of death. Real estate is often an exception, and probate may extend to any county where the real estate is located. (Probate is usually needed in any state where the deceased owned real estate.)

The executor will also assess any taxes or debts the estate may owe. A notice of death or probate is usually published, and creditors are given a limited time to make claims against the estate. If the executor rejects the claim, the creditor may take the executor and estate to court, where a probate judge will determine the debt's validity. The executor is responsible for filing the deceased's final, personal income tax returns. And the executor files an inventory of the estate, making record of what the estate holds. The executor's last task, via court authorization, is to distribute what remains of the estate to the beneficiaries.

Probate with an Administrator

If a person dies without a will, they are said to have died intestate. An estate can also be deemed instate if the will presented to the court is found to be invalid. The decedent's assets of an intestate estate follow a similar probate process, beginning with the appointment of an administrator. An administrator functions like an executor, receiving all legal claims against the estate, paying outstanding debts, and the decedent's taxes.

Administrators must also seek out legal heirs, including surviving spouses, parents, and children. The probate court will determine the distribution of the estate among its legal heirs. If there are no known heirs, state law determines what happens to property. Texas provides for "laughing heirs"--extending to far-removed relatives who might never have even known the deceased. Florida, though, allows only a short connection to the descendants of the deceased's grandparents. Otherwise, the estate goes to the state.

Time, Expense, Privacy

The more complex or contested an estate is, the longer the probate process can take to finalize. The longer the process, the higher the cost. In Florida, cost can depend on the value of the estate. And probate without a will typically costs more than probate with a valid will. Regardless, neither scenario is inexpensive. Probate court files an estate's assets as a matter of public record, so if you want to keep your estate private, it is best to pursue other estate planning options such as a trust.

Probate can also go smoothly. Even then, though, most can expect to pay at least a few thousand dollars to navigate the process.

The Attorney's Role

On the front end, a qualified estate planning attorney works with clients to help them understand options in estate planning that can reduce the cost and hassle of probate. With careful planning, probate can be avoided completely. Sometimes, the better solution is to minimize probate. In any situation, having a well-drafted will eases that process

After someone passes away, the attorney works with the executor or administrator to handle the legal side of the process. And if a will contest occurs, a probate litigation attorney is needed to represent different sides in that court process

As an estate planning law firm, McCreary Law Office helps clients determine what planning tools are best for each person. When helping people through the probate process, the office strives to make the process less confusing and complex. For more information in either area, please contact McCreary Law Office or call the Jacksonville, FL office at 904-425-9046 or the Houston, TX office at 713-568-8600.

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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