Glossary & Frequently Asked Questions About Probate Issues
DISCLAIMER: Please be aware that the following information is intended as very generalized guidance and offered without warranty or guarantee of accuracy. We suggest you use this information to formulate specific questions to discuss with your attorney, real estate professional, personal representative, and/or executor or executrix. By accessing this page, you acknowledge that you are hereby advised that any decisions regarding probate issues should be discussed with a professional in the field of Probate Law.
- Probate Court/Surrogate Court
- Joint Tenancy With Rights of Survivorship
General probate FAQs:
- How does the probate process work?
- How long does probate usually take to complete?
- Is it necessary for all of the decedent’s property to go through probate?
- How much does probate cost?
- If there is a really small estate, is probate still necessary?
- Can I handle probate without a lawyer?
Personal Representative / Executor / Executrix FAQs:
- Who is legally responsible for handling the probate process?
- Can there be more than one designated personal representative?
- Is it necessary for the personal representative to live in the decedent’s state?
- If I am named as the personal representative, do I have to accept the job?
- Are personal representatives usually paid for their work?
FAQs about Contested Wills:
- What if someone objects to the will?
- Why would someone contest a will?
- What happens if a will is declared invalid?
- How can I find out if there was a will?
- How can I avoid probate of my estate?
FAQs about Property Issues:
- What happens when the person who dies owned land in multiple states?
- Is it necessary for all of the decedent’s property to go through probate?
FAQs about Payments and Taxes:
- How are creditors against the estate handled?
- Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent?
- How are taxes handled in probate?
FAQs about Provisions For Children / Survivors:
- Are provisions for the care and guardianship of minor children usually provided for in a will?
- How does “joint tenancy” affect a will?
- Are there any specific rules about how property can be disposed of?
FAQs about Wills:
- What are the actual requirements for a will to be valid?
- After a will is created, can it be modified?
- Should a will provide a separate list that details and bequeaths specific personal property?
- When should I make a will?
- What if there is no will?
- What happens if a person dies without leaving a will?
- What happens if a will cannot be found?
- Who can or should draft my will?
- Must a will actually be read out loud to the family by the personal representative or attorney?
Glossary of Probate Terms
Probate is a legal process in which the will of a deceased person is reviewed to determine whether it is valid and authentic. A probate is the first step taken in administering the estate of a deceased person and distributing assets to the beneficiaries. When a property owner dies, his assets are divided among the beneficiaries listed in his will — which should contain instructions on how his or her assets should be distributed after death.
In some cases, the deceased (or “testator”) does not leave a will. Whether there is a will for guidance or not, the assets of a decedent’s estate may be required to go through probate.
Probate Court / Surrogate Court (top)
Probate court, known as Surrogate Court, is a segment of the judicial system that is responsible for handling such matters as wills, estates, conservatorships and guardianships. When wills are contested, the probate court is responsible for ruling on the authenticity of the document and the mental stability of the person who signed it. The court also decides who is to receive which portion of the decedent’s assets, based on the instructions in the will or, if no will was left, the court determines who is to receive the deceased’s property under the laws it is governed by.
If there are disputes regarding an estate, the probate court ultimately decides who is to receive the property of a deceased person.
An executor (if male) or Executrix (if female) is an individual appointed to administer the estate of a deceased person. The executor/exectirix’s main duty is to carry out the instructions and wishes of the deceased. The executor/executrix is appointed either by the testator of the will (the individual who makes the will), or by a court, in cases wherein there was no executor/executrix declared by the deceased.
The executor/executrix is responsible for making sure all assets in the will are accounted for, along with transferring these assets to the correct party (parties), and ensure that all the debts of the deceased are paid off, including any taxes. The executor/executrix is legally obligated to meet the wishes of the deceased and act in the interest of the deceased. The executor/executrix can be almost anyone but is usually a lawyer, accountant or family member, with the only restriction being that he or she must be over the age of 18 and have no prior felony convictions.
Joint Tenancy With Rights of Survivorship (top)
“Joint Tenancy with Right of Survivorship” is a type of ownership of real property or financial assets in which all joint owners have equal portions of ownership that are immediately re-allocated to remaining owners if one or more owner dies.
This term refers to a person who has died and left a “Last Will and Testament” that specifies their wishes pertaining to the distribution of the assets of their estate following their death. In this case, the estate will be distributed according to the provisions of the will.
This term refers to a person who has died but did not leave a “Last Will and Testament.” In this case, the administration of the estate will be handled by the court of jurisdiction and according to the laws of the state.
A codicil is a document, attachment or rider that is added to an existing will which modifies or supersedes existing provisions or adds new provisions. This is done as an alternative to redrawing the entire will and is often done to change a beneficiary or assign disposition of a particular property or define the rights of a specific beneficiary.
Frequently Asked Questions About Probate Issues:
Q: How does the probate process work? (top)
A: While the process can vary from state to state, the following is a simplified step-by-step description of the process:
Step 1: File a petition to begin probate.
You’ll have to file a request in the county where the deceased person lived at the time of their death. The paperwork will ask for you to be officially acknowledged as the legal executor representing the estate. In addition to the petition, you’ll need to file a valid will, if one exists, and the death certificate. Then the court will schedule a hearing to approve the executor (or hear objections from other parties). If you’re approved as executor, the court will officially open the probate case and you will now be able to act on behalf of the deceased’s estate.
Step 2: Give notice.
You’ll need to mail a notice that the estate is in probate to all creditors, beneficiaries and heirs (as required by the court). Some states may also require you to publish a notice in the newspaper.
Step 3: Inventory assets.
Collect, inventory and appraise all assets that are subject to probate and present them to the court, such as:
- Bank accounts.
- Retirement accounts.
- Stocks and bonds.
- Real estate.
- Personal effects, such as valuable art collections.
Step 4: Handle bills and debts.
Collect money owed to the estate, such as outstanding paychecks and rents. Also review any outstanding bills and debts and decide whether/how they must be paid. You’ll need to ensure the estate’s assets can cover all debts before paying them. If not, the state will prioritize creditor claims. You’ll also need to pay all applicable taxes, as well as file a final income tax return on the estate. It’s usually a good idea to set up an estate account for paying the estate’s final bills and expenses.
Step 5: Distribute remaining assets.
With all claims, debts and expenses paid, you’ll give the remaining property to the rightful heirs and/or as the will directs.
Step 6: Close the estate.
Once everything has been distributed, you’ll submit receipts and records of everything to the court and then ask for the estate to be closed – and to be released from the role of executor.
Q: How long does probate usually take to complete? (top)
A: Generally it takes about six months. However, it can and frequently does takes longer. Some of the matters that can delay the process can include:
- Problems in locating the heirs and beneficiaries
- A contest of the will (disputing the validity of the document) by the heirs or beneficiaries
- Claims or liens against the estate that remain unsettled
- Real estate or other property that cannot be sold for some reason
- Failure to properly notify one or more creditors during the claim period
- Dissatisfaction regarding the actions of the personal representative by the heirs or beneficiaries
Q: Is it necessary for all of the decedent’s property to go through probate? (top)
A: Not always. Here are some examples:
- Real and personal property owned under “joint tenancy with rights of survivorship” passes to the surviving co-owner(s), usually without a requirement for probate.
- Other types of benefits, such as a life insurance policy or an annuity that is payable directly to a named beneficiary can often be tendered without the requirement for probate.
- Also, IRAs, Keoghs, and 401(k) accounts usually transfer to the persons named therein as heirs or beneficiaries automatically without probate.
- Bank accounts that are set up as “payable-on-death” accounts; ones that are being “held in trust for” specific heirs or beneficiaries (also called a “Totten Trust”) also pass the proceeds directly to the named heirs or beneficiaries without probate.
- A “living trust” that holds title to a property held in trust also passes that property to the heirs or beneficiaries without probate.
Q: How much does probate cost? (top)
A: The cost of probate depends on so many factors during the process. It is best to check with a professional.
Q: If there is a really small estate, is probate still necessary? (top)
A: It depends on the court of jurisdiction. If there is real estate involved or there are debts against the estate, regardless of the size of the estate, the full probate process may be required or advisable. It is best to consult a probate lawyer.
Q: Can I handle probate without a lawyer? (top)
A: While there is usually no legal requirement to use a probate lawyer, it can be a very complicated procedure and one misstep can expose everyone to liability. Plus, during such an emotional time, some people are not thinking clearly. Rifts can occur between family members and friends over seemingly petty items, so it is usually good to have a 3rd party (lawyer) to sort things out.
Q: Who is legally responsible for handling the probate process? (top)
A: If there is a will, the personal representative/executor/executrix is usually responsible. If there is no will, an “administrator” is appointed by the court as part of the probate proceeding and that person has the responsibility for managing the estate.
Q: Can there be more than one designated personal representative? (top)
A: You may appoint co-representatives, just be aware that this can cause problems and delays if there is a disagreement between the representatives. However, such an arrangement works best if, for example, one representative handled only the real estate aspects of probate and the other one was designated to handle all other issues, etc.
Q: Is it necessary for the personal representative to live in the decedent’s state? (top)
A: It depends on the laws of the state, but usually is not a requirement, although it does make things easier, generally.
Q: If I am named as the personal representative, do I have to accept the job? (top)
A: No, it is always your option to serve or decline, and even if you agree to serve you can resign at any time. If you do quit before the completion of probate, you may be required to provide an accounting for the period you served.
Q: Are personal representatives usually paid for their work? (top)
A: It is not a requirement, but usually they are compensated. At minimum, all personal expenses incurred during the process of settling the estate are paid for. Typically, a personal representative also earns a small percentage of the total value of the estate for their work. This can be mandated by the courts or by law in some states and varies from state to state. All funds paid to the personal representative are subject to approval by the probate court. Additional fees may be allowed by the court in cases of unusual difficulty or extraordinary circumstances.
Q: What happens if the personal representative fails to perform his or her duty? (top)
A: A personal representative would be held personally liable for possible damages caused in the mismanagement of the estate and could end up paying for the loss out of his or her own pocket.
Q: What if someone objects to or contests the will? (top)
A: When someone files an objection to the will, what is known as a “Will Contest” has begun. Will Contests can be very costly and create long delays. A person must prove “standing” in order to contest a will (example: a child not named as a benefactor). A Will Contest can also be launched in order to have a different person, bank or trust company serve as personal representative for the estate.
Q: Why would someone contest a will? (top)
A: The typical objections for contesting a will include:
- The will was not properly drawn, signed or witnessed.
- The testor lacked mental capacity at the time the will was executed.
- There was fraud, force or undue influence.
- The will is believed to be a forgery.
Q: What happens if a will is declared invalid? (top)
A: The probate court may invalidate all provisions or only the challenged portion. If the entire will is seemed invalid, generally the proceeds are distributed under the laws of “intestacy” of the probating state. If there is even the possibility of a will contest, an experienced probate lawyer is a must.
Q: What if there is no will? (top)
A: If a person dies without a will (known as dying “intestate”), the probate court appoints a personal representative (or “administrator”) to receive all claims against the estate, pay creditors, and then distribute all remaining property in accordance with the laws of the state.
Q: How can I find out if there was a will? (top)
A: The first place to check is with the probate court in the county where the deceased lived. In most cases the will, if filed, will be available to the public. For a small fee, anyone may obtain a copy. If you are far away, a local lawyer or legal service often can arrange to do a search and get a copy for you.
Q: How can I avoid probate of my estate? (top)
A: One way to reduce or eliminate the need for probate is through the use of a “Living Trust” which holds legal title to some or all of your property at the time of your death. The Trust is a legal entity which survives you after your death.
Q: What happens when the person who dies owned land in multiple states? (top)
A: Usually, the laws of the state in which the deceased was last a permanent resident prevail regarding governance of probate issues – covering all of the deceased’s personal property, wherever it was located, and all the deceased’s real property located within the state. Therefore, probate almost always filed in the last state where the deceased person lived.
If the decedent owned out-of-state real property, the laws of the other state can govern (or certainly affect) who inherits it if there is no will. If a will exists and it has been filed for probate in the state of most recent residence of the deceased, it usually must be submitted to probate in the other state(s) of jurisdiction in which the deceased owned real property. That additional probate filing is formally referred to as “ancillary probate”. Some states require the appointment of a personal representative who is a local resident or the state to administer any in-state property.
If there is no will, probate is usually required in each state where the real property is situated, in addition to the home state and each individual state can impose it own methodology that controls the distribution of assets. As an example, in one state, the real estate might go only to the spouse. In another state, it might be equally divided between a spouse and each of his or her children. In still another, half of the assets might go to a spouse and the remainder divided equally between the children. This is one of the reasons a will is so important to properly express the wishes of the deceased and prevent family struggles and quarrels following a death.
Q: How are creditors against the estate handled? (top)
A: Creditors are notified of the death as part of the probate process. This notification process can vary from state-to-state but generally administered via a letter to each creditor or a blanket notice to all creditors published in the local newspaper. Once this filing or notification has occurred, creditors have a fixed period of time (defined by the court of jurisdiction) to file any claims against the estate. The bill is usually paid out of the estate. However, if the personal representative rejects a claim, the creditor must sue the estate for payment.
If the estate does not have sufficient funds to pay the lawful debts to the creditors, the determination of who receives payment and in what order is determined by the probate court. The personal representative may be required to sell some or all of the decedent’s property to satisfy the claims of the creditors.
Q: Do beneficiaries have to pay creditors out of their own pocket if the estate is insolvent? (top)
A: No, beneficiaries do not have any liability to the deceased’s creditors just because they are beneficiaries — unless the beneficiaries took any property or benefits from, or had assumed liability for, the deceased (or estate).
Q: How are taxes handled in probate? (top)
A: For federal and state tax purposes, death triggers two events:
- It ends the decedent’s last tax year for purposes of filing an income tax return, and,
- It establishes a new, separate entity for tax purposes, the “estate.”
For Federal tax purposes, it may be necessary to complete and file one or more of the following, depending on the decedent’s income, the size of the estate, and the income of the estate:
- Final Form 1040 Federal Income Tax return.
- Form 1041 Federal Fiduciary Income Tax returns for the estate.
- Form 709 Federal Gift Tax return(s).
- Form 706 Federal Estate Tax return.
For state purposes, an executor must file the appropriate state income tax return (assuming the decedent was required to do so while living) and any state income tax returns during the probate period, plus possible estate tax, inheritance tax and gift tax returns. (In many states, gift, estate and inheritance taxes have been eliminated for most small and medium-sized estates.) The requirements for filing and payment vary widely from state-to-state.
Other taxes require the attention of the personal representative in the probate process, such as local real estate and personal property taxes, business taxes, and any special state taxes. The Personal Representative should also be alert to the possibility of issues arising from tax years prior to the decedent’s death.
Q: After a will is created, can it be modified? (top)
A: Yes, a will can be modified with an addendum, often referred to as a codicil, or replaced by a completely new will.
Q: Are provisions for the care and guardianship of minor children usually provided for in a will? (top)
A: Often they are, but a court is not bound by these provisions and might overrule them if there was a specific reason to do so or a justifiable challenge to the guardianship was offered by another family member or interested party. It is also possible that a different guardian would be appointed if a designated guardian was deemed to be incompetent to adequately serve in such a role or is judged to be an otherwise inappropriate choice, based on moral or other character issues. In all such cases, the decision of the judge will determine the final guardianship, but the wishes of the person making the will always be given first consideration. It is important to add this provision to a will since it is possibly the only way your wishes in these matters would ever become known.
Q: Are there any specific rules about how property can be disposed of? (top)
A: Within reason of legality, yes, but if a request is deemed inappropriate by the courts, it can be denied. A judge can void all or part of a will. For example, you may not suspend or terminate any legal rights or claims that a spouse, child or business relationship may rightfully have against an estate just by stating that in a will.
Q: How does “Joint Tenancy” affect a will? (top)
A: “Joint Tenancy with Right of Survivorship” is a common legal method of defining property ownership when shared with another person, but it doesn’t replace a will. Typical, this “survivor” is a spouse, but can apply to other relationships. If one of the owners dies, the other becomes the sole owner of the property. This means that the real estate isn’t part of the decedent’s estate, and therefore, is not subject to probate. However, all parties should be aware of possible tax liability implications (if any) of such survivorship.
Q: Must a will actually be read out loud to the family by the personal representative or attorney? (top)
A: Some jurisdictions may require this, but generally the personal representative of the estate provides notice of probate to all interested parties and they can obtain a copy of the will from the probate court if desired. Often, enough copies of the will are made and distributed to the affected parties by the representative.
Q: Should a will provide a separate list that details and bequeaths specific personal property? (top)
A: If this is allowable in the state in question, the benefit of doing so is that the list can be changed from time to time as opposed to changing or adding codicils to the will.
Q: What are the actual requirements for a will to be valid? (top)
A: In general, a valid will must be hand-written or printed and signed by the person who has created it. This person is the “testator” and a will is usually witnessed by two (or more) persons who must normally be “disinterested” parties – meaning they are not named as beneficiaries in the will. Witnesses must also be of “sound mind” (mentally competent). The required number of witnesses may differ by state. The testator needs to have reached the age of “majority” (18 in most states) and be of “sound mind” (mentally competent) when the will is executed. Normally, it is not a technical requirement for a will to be notarized, but it certainly is helpful to add strength to the will. Handwritten wills are still recognized as valid in many states without being witnessed. Such a will must be in the normal and provable handwriting of and signed by the testator. As always, state law might impose other conditions on a handwritten will.
Q: What happens if a person dies without leaving a will? (top)
A: The laws of each state usually provide a “default will” for any person who dies without a will. The spouse and children of the decedent will usually be given the property of the deceased. If no spouse and no children exist, then the decedent’s parents will usually receive the property. Following them, if they are not alive, are other siblings, grandparents, and children of the grandparents. If no close direct family can be found, the property will eventually revert to the state. Just be aware that in all cases, any creditors (including taxing entities such as the state, local and federal government) will be allowed to extract what they are owed from the estate prior to its final disposition and this could necessitate the sale of property to provide funding for these liabilities.
Q: When should I make a will? (top)
A: If you are “of age” in your state, generally 18-years old, then the answer is, as soon as possible.Things happen often unexpectedly and you want to be sure that your wishes are carried out as faithfully as possible, as well as prevent confusion and possible conflict between those you love.
While state law will decide what happens to your property if no will is left behind, the courts will distribute property to relatives. Therefore, a girlfriend, boyfriend, partner, friend, caregiver, or fiancé will have no provision made for them by law unless explicitly stated in a valid will.
Q: Who can or should draft my will? (top)
A: If you do not do it yourself (which is perfectly acceptable) only an attorney can legally draft a will for you. Be aware that personally drafted wills are often incomplete and therefore some or all of it can be held to be invalid or easily contested under state laws. If you decide to craft a will via one of the many “DIY” sites on the internet, be certain the provisions within are specific to your state. If your will fails to follow state law, it could be held to be invalid.