What is Probate Court?
Probate Court is a special court that oversees validating the will of a deceased person and dispersing their assets according to their wishes. In a probate proceeding, an appointed executor or administrator will execute the probate process. Most of the probate process does not actually take place in a courtroom, rather the executor or appointed administrator will take care of the process on their own or with counsel and officialize it in the courtroom. If the probate process does happen in a courtroom, it is usually because the will has been contested or there are debt claims from outside parties. Debt claims are settled either between the executor, or the court will give a ruling if no agreement is made. Contesting a will however, will elongate the court procedures and make the process seem like a mountain too big to climb. In this article you will learn a little about the probate process, factors that may affect the process, and other relevant information.
What is the Probate Process?
The probate process always has 3 basic, necessary steps;
- Validating the will, if there is one
- Paying off any existing outstanding debts
- Distributing the leftover assets.
If the decedent left a will, they will name the executor in it. The executor is responsible for executing the decedent’s will and carrying out the final wishes. They are responsible for filing the probate petition with the local county probate or chancery court. To file a probate petition, the executor must gather all relevant documents; last will, death certificate, letters testamentary, and notice to creditors and family members. Once submitted and reviewed, the court will schedule a hearing where all those given notice are free to view, and where other family members are given the opportunity to contest the will. If there was no will, this is where the court would appoint an administrator, usually a close family member. When the executor, or court appointed administrator has been officialized, they can start to tackle the probate procedures. First, the executor must compile a comprehensive list of all assets and debts the decedent once owned. This includes things like real properties, land, vehicles, jewelry, accounts, trusts, etc. in their name. Once that step has been taken, the executor can start to pay off any debts your loved one may have had. The debts must be claimed within 60 days after service (or notice of death), and any claimed debts must be paid off before the probate process can move on. Your family can use your assets to do so if they are unable to pay the debts out of pocket. When that is done, you can go ahead and schedule a final hearing where the court will review the presented information and assist in splitting the assets between the heirs. The executor also bears the responsibility of providing the court a final accounting that details any and all transactions made by the executor.The Court will finalize everything and your petition will have its Final Approval. One less thing to worry about during this hard time.
Wills
The existence of a will is crucial in probate cases. If there is one, it must be proven to be both the decedent’s and valid. Families can contest the execution of a will, the validity of a will, they can also contest the named executor in the will and petition for someone else to be appointed. A will is important because it gives an outline to how the deceased wanted their assets split. Wills are guiding documents that ensure the settlement process follows their wishes. Not only do wills protect your assets when you leave, but they provide clarity for your loved ones amidst the emotional turmoil.
Vocab & FAQs
There are some words you should know, as they define how a probate case will be handled. Whether or not they apply to you, it’s good to have the knowledge. These words will help you better grasp what you’re reading:
- Probate Assets – Probate assets are assets subject to probate after you’ve passed away, things like real properties, cars, your bank account and savings account, and any valuable personal property
- Non-Probate Assets – non-Probate assets are just that, assets that cannot be subject to probate by the court. This includes, but is not limited to, things like jointly owned properties, bank accounts, trusts or accounts with named beneficiaries, or a decedent’s partner’s properties
- Testate – When you die in Testate, you have died with a valid will to help disperse your belongings. After it is validated in a courtroom, your family must disperse your belongings according to your wishes. Wills ensure you get what you want even after you have passed away.
- Intestate – When you die intestate, you die without a will, meaning the court will help decide how to split your assets. They will appoint an administrator, and the administrator will carry out their role according to the factors set forth in 31-2-101.
- Testator – Testators are people who have made a valid will with their legal counsel. It is ‘any person who makes a will.’
- Executor – The executor is named in a testator’s will. They have the responsibility of carrying out and executing their loved ones final wishes. A hard, heavy burden.
- Administrator – Administrators are court appointed executors. They are usually appointed when there is no will left by the deceased, or when families have contested the named executor. If the court decides to appoint an administrator, it will most likely be a close family member.
Each of these words are going to be used in this article. It’s important to understand what you are doing, especially when it pertains to legal matters, as you wouldn’t want to get arrested for a crime you didn’t even know you were committing. There are other things you should be aware of when involved in a probate case, like the intestate order of inheritance. the Right of survivorship or Tenants in common. The intestate order of inheritance, according to § 31-2-104 is as follows; Surviving spouse of the deceased, surviving child(ren), then parents of the deceased, siblings of the deceased, and then finally, if no previous family member is alive, both the maternal and paternal grandparents of the deceased would inherit leftover assets. The Right of Survivorship pertains to how joint ownership of real property would transfer to the other owner without passing through probate, whereas tenancy in common would pass down ownership to heirs through without the probate process. There is always more you can learn to ease the process of losing your loved one, however we recognize the difficult time it may be and are more than equipped to help you and your family through it. Give our office a call and see what steps we can help you take to move forward.
Fact Patterns
There is a big difference between testate and intestate probate cases. Let’s look at some and determine the what would happen in each separate case:
- For example, Eleanor and James are sixty-three and sixty-seven, respectively. They had 3 children together over their 30 year long marriage; Kaylee, Josh, and Frankie. When James passed away, Eleanor was his named beneficiary, so any accounts he owned with beneficiaries were not subject to probate. However, his other accounts and their estate was, as she was not the beneficiary, they did not jointly own his other accounts, or the property. Because James passed away intestate, we follow the Order of Inheritance pursuant to § 31-2-104, and the estate would pass to Eleanor, then to the children when she passes.
- Say it’s been 15 years since James passed. Eleanor passed soon after him, and besides the estate, all the assets were split evenly between the 3 children. The parents’ home, left to the youngest, Frankie. Because the home is on the beach, the 3 siblings have been using it as a family vacation house. One year, they are spending the summer together with their families, going to dinner when a semi truck T Bones their car, killing Frankie and Josh. Frankie was the youngest and single, so she had no partner or children for the house to pass down to, and because of this, the house was split by the court between the two remaining siblings in joint tenancy.
- Here’s another example, Clara is a 26 yr old pediatric nurse. She is on her way home from a 12 hour shift when she accidentally falls asleep at the wheel and veers off the bridge. Clara had a baby in the beginning of college, and has been taking care of him since. Clara, despite being young, had made a will because of her son, and named her parents both heirs and executors, asking them to take in her son should something happen to her. Clara had set up a trust for her son, putting money in it in small increments. Because it’s a trust with her son as a named beneficiary, the trust was not subject to probate, whereas her other assets and belongings were. Her parents are the named heirs, and inherited her leftover assets after probate.
Conclusion
The biggest takeaway from this article should be, always write a will. If you have a valid will, all your assets and properties will be ensured protection, and if you have a will, your things will be dispersed as you want them to be. Wills make the process quicker and easier, especially during a time of loss. There are always steps you can take to smoothen the process, and our firm is here to take those steps with you.