Probate is a legal process in which the executor of an estate completes the process of distributing someone's property after they die. Probate laws are defined by state statute and vary widely by jurisdiction. The executor or administrator of the estate can find the probate laws for the jurisdiction by reviewing the state code section relating to probate, intestacy and/or trusts. Nearly all states provide access to the code online. Be prepared, though, it may be written in legal terms, so you might want to double-check your understanding with a lawyer or the proper state entity.
What is Probate?
When a person dies, he typically leaves a will detailing who should receive his personal and real property. Probate is a court-supervised procedure through which titles and deeds are passed from the decedent to the heirs. Depending on the size and complexity of the estate, the probate process could last a few months up to one year or more. All wills are subject to the court-supervised probate process, as opposed to a revocable living trust, which passes automatically to beneficiaries. If the decedent possessed property as a joint tenant with survivors, his share is divided equally among the survivors.
Many people choose to work with an experienced probate or estate planning attorney during the probate process as it can become complex and frustrating. A will typically names a person whom the decedent would like to administer the estate, known as an executor. That person is responsible for distributing all personal property in accordance with the will. That person must also arrange for transfers of deeds to real estate as well. If the estate owes taxes -- and most do -- the executor must pay these debts from the estate account. If the decedent had debts, the creditors have a certain amount of time -- usually six months -- to make a claim against an estate. Miss the time limit and you lose your right to the debt.
Typical Time Requirements
The amount of time allotted to the executor to complete everything varies by state. Many states impose a limit on the executor to begin the probate process, typically one to three years. Other states do not have a time limit, but executors are encouraged to open the estate within a reasonable time so as to avoid late payments of estate debts. An estate is considered "closed," ending probate, when all accounts and debts have been closed and deeds to property are transferred to the appropriate beneficiaries.
Exceptions and Special Rules
Some states that have time limits offer exceptions or extensions in certain circumstances. For instance, if details surrounding the date of death of the decedent are unclear or the appointed executor cannot be located, the court will extend the time limit. Also, if the court is having difficulty locating an heir or understanding the language of the will, the court can extend the limit.
All states impose a fee schedule for petitions and motions submitted as part of probate. Some states assess fees congruent with the size of the estate, with larger estates requiring higher fees.. In recent years, a strong minority of states have adopted a reasonable fee approach that encourages attorneys helping with probate to asses "reasonable fees" and probate costs are not determined by the size of the estate.
Stephanie Reid has been writing professionally since 2007, with work published in the Virginia Bar Association's "Family Law Quarterly" and the "Whittier Journal of Child and Family Advocacy." She received her Juris Doctor from Regent University and her Bachelor of Arts in French and child development from Florida State University. Reid is admitted to practice law in Delaware and Maryland.