What is Probate?
Probate is an administrative court process by which the assets of a decedent are transferred to the decedent's rightful heirs.
When is it Required?
A probate is required when a person passes away and no existing mechanism exists that automatically transfers their assets to their intended beneficiaries. For example, if a person held all his or her assets in a trust and/or in joint tenancy and/or in accounts which named beneficiaries, no probate would be required. However, if a person dies and does hold title to real property, accounts, or other assets which do not transfer automatically to third parties, such as the spouse or children, then a probate generally is required for the heirs to obtain title and possession of such assets.
The process is started by the person nominated as the Executor in the Will filing a petition for probate. If approved the Will is admitted and the court officially appoints the nominated individual(s) as Executor. This is important as just being named as the Executor does not confer any power upon the person named. For example, you will not be able to sell real property or access bank accounts. Only upon the court's appointment will the person be recognized as someone having authority over the assets of the decedent. If there is no Will or the Will names individuals who are unavailable to serve as Executor (i.e. the nominated individuals are deceased), the exact same process occurs except for the person appointed is called the Administrator.
Once appointed the Executor or Administrator transfers title of all the assets into the name of the estate, pays all valid creditors, notifies all the individuals and entities entitled to notice, prepares an accounting, and distributes the remaining assets to the rightful heirs. It sounds simple, but there are numerous steps and potential pitfalls in the process and, due to the court's backlog, typically takes more than one year.
Are there Exceptions?
As previously mentioned, a probate proceeding is generally required when assets don't automatically transfer upon death, however, there are two notable exceptions. First, if the spouse is the beneficiary of the assets, which is typically the case in a long-term marriage, the surviving spouse can claim the property in a "summary probate" or "set-aside proceeding" that can take as little as 30 days. Second, if the total value of the deceased person's property otherwise subject to probate is less than $150,000.00, an affidavit procedure may be used to obtain the personal property, such as bank accounts, typically that same day. Real property can be transferred in a similar manner, but it also requires a court proceeding which typically takes about 30 days to complete.
Why Our Firm?
Whichever situation applies, at Kohl and Associates when we represent a client we do so with a goal of completing the process as efficiently as possible while at the same time doing it in a manner that minimizes the work and stress upon our client.