What Does It Mean To Be In Probate?

What Does It Mean To Be In Probate?

Probate is an orderly process that courts use to help families get closure over a deceased person’s estate, which includes his or her assets and debts. Popular culture often skews the concept of probate with depictions of the reading of a will in a lawyer’s office. Still, an estate can go into probate even if the deceased family member did not have a will. 

The estate planning law firm of Kantrowitz, Goldhamer & Graifman helps families in New York and New Jersey during this difficult time.

Key milestones in the probate process

Probate can last anywhere from a few months to several years, depending on the complexity of the decedent’s estate and the extent of any challenges to his or her will. Several milestones are common in every probate action:

  • A family member of another representative files the decedent’s will in a probate court, typically within 12 months after the decedent’s death, and the court verifies the authenticity of the will.
  • The court approves the decedent’s choice of an estate executor or appoints an executor if the designated person declines or the will does not name anyone as an executor.
  • The executor files an inventory of the decedent’s assets, including their estimated value.
  • The executor identifies and notifies creditors of the decedent’s death and resolves any outstanding debts.
  • The executor prepares and files the decedent’s final tax returns.
  • The court approves the final distribution of the estate’s remaining assets.

Avoiding probate with estate planning

Even if an individual’s estate and asset holdings are not very large, that person can take a few steps to prevent some common problems that might arise in probate with a few simple estate-planning mechanisms. Assets in bank and finance accounts that are owned jointly with rights of survivorship, for example, pass to the survivor by operation of law and apart from any probate process. Individuals can also use life insurance and revocable living trusts to transfer assets to heirs. These structures are not difficult to establish, but any mistakes in structuring them can delay or impair the efficient transfer of assets. Accordingly, individuals should always consult with an experienced estate and trust attorney to set up an effective estate plan.

Common probate problems

Some of the more common problems that occur in the probate process include:

  • The decedent did not have a will, in which case his or her assets will be distributed per the laws of the decedent’s state of residence or where his or her estate was submitted to probate.
  • Heirs or other parties challenge the will and the decedent’s instructions on the distribution of assets.
  • The decedent’s bills were greater than the value of his assets when he or she died.
  • The estate executor is unable or unwilling to perform the tasks that are necessary to move the probate process forward.

These and other problems can be alleviated with estate planning and probate management by an attorney who understands the probate process and how different courts address and resolve common probate problems.

The costs of probating an estate

Estate probate costs will range significantly as a function of the size and complexity of the estate. The executor pays those costs from the estate’s assets and is typically compensated from those assets for his or her efforts. For larger or more complex estates, many planners estimate that probate will cost from 5% to 15% of the value of the estate.  These costs can be reduced and managed with efficient and effective estate planning.

Speak to a Probate Attorney Today

Call now and speak with a Rockland or Bergen County probate lawyer who can help you devise an estate plan in your jurisdiction. We look forward to hearing from you and scheduling a consultation where we can review all your probate and estate planning questions. 

Additional Resources:

  1. www.thebalance.com: What Happens During The Probate Process? https://www.thebalance.com/what-is-probate-3505244
  2. www.theblance.com: Does A Will Always Have to Be Probated? https://www.thebalance.com/does-a-will-have-to-be-probated-3974770
  3. www.moneycrashers.com: What Is Probate – Definition, Process, How to Avoid It. https://www.moneycrashers.com/avoid-probate-definition-process/