It can be very difficult to deal with the passing of a parent. But when you are left to deal with their estate it can get quite confusing rather quickly – especially if it goes to probate.
Probate is the settling of an individual’s estate by a court-appointed executor. While it can be simpler if the estate fits within a certain tax bracket, if it does not it can involve a lengthy court process, sometimes lasting even years.
Can Probate Be Avoided?
Probate may be avoided altogether if the executor is able to prove that all debts have been paid by the value of the estate and there are no significant debts remaining. In such situations, the court will likely choose to either settle the estate, perhaps using an affidavit.
Things can get trickier if the individual who passes does not have a will and a clear, legal estate plan or if Medicaid or other social services are involved. In cases such as these, it is likely that probate will be found necessary.
How Long Does the Probate Process Take?
Probate generally takes several months to complete, even if the deceased had a will. The process begins with an individual (the executor, widow/er, family lawyer, etc.) filing the application to probate will along with the original will filed with a probate court.
How Does Probate Work?
Going forward the following steps usually take place:
- At a hearing, a judge finds whether or not the will is valid. If there is no will, an heirship hearing is required to determine the legal heirs of the estate.
- An executor is appointed. A judge chooses the individual designated in the will, a legal heir, or a surviving spouse, though they may choose to decline the position. Once the appointed executor signs the oath the letters testamentary may be issued.
- The executor is responsible for ensuring that creditors have been notified of the individual’s death. He or she will also prepare tax returns for the deceased. Additionally, the executor will confirm as to whether there are any other undocumented debts.
- Once all debts have been paid, the executor will file the appropriate paperwork and start to distribute assets to those entitled beneficiaries. However, if there is no will, the court is to decide who the appropriate heirs should be.
- Once the first four steps have been met, only then can the estate be settled.
Though not always straightforward, once the probate process is completed and understood, it can help to ease any tension, fears and uncertainty often associated with it. The relevant laws serve to protect the estate and everyone involved. Sometimes the most important thing that you can do is exercise patience – and call an experienced attorney.