Probate 101: What to Expect When Probating an Estate

Most people starting the probate process have one primary question: which of the assets need to go through probate?

The answer depends on a number of factors, such as the state you reside in and what sort of property the deceased person owned, but there are a few general rules to keep in mind as you compile a list of assets and submit it to your local probate court. Here is a list of the assets that you will have to probate in the majority of cases, and what to expect going forward.

Compiling a list of property owned in the name of a deceased person.

The probate court is mainly concerned with property that the deceased person owned in his or her name. This can be any number of holdings, from real estate and cars to stocks and bonds. Property held as a tenant in common is also eligible for probate.

The property to be probated will need to be appraised in order to calculate its current value, typically within 30-90 days of opening the probate estate with the court. Financial institutions where the decedent had accounts must be contacted, and other assets such as jewelry and artwork will have to be evaluated with the help of a professional appraiser. An experienced estate planning lawyer can help you determine exactly what needs to be included.

Starting the process.

Once you have determined the estate’s value and the judge has approved the last will and testament and appointed a personal representative, or executor, there are a few tasks left to do. The executor must notify any creditors so that they are given a chance to collect. Any remaining bills, estate expenses and income taxes will have to be paid. It is also the executor’s responsibility to handle any estate tax that may apply, although the majority of estates will be under the threshold.

Next, the beneficiaries named in the will can receive their disbursements. This should take place after all bills and taxes have been paid so that the executor can use the proceeds of the estate and avoid out-of-pocket expense.

Intestate estates.

When a person passes away without creating a last will and testament or the will is successfully contested, their estate becomes known as “intestate.” When this happens, property passes to family members according to the state’s laws of intestate succession. The steps of the probate process remain largely the same regardless of whether or not there is a will; the only difference is that property passes automatically to the spouse and/or surviving children rather than whomever might have been named in a will. In the rare event that a decedent leaves no will and no surviving family members, the estate could become the property of the state.

Probate can be a stressful process for surviving family members to go through, but it ultimately helps to ensure that assets are distributed according to the will and state laws. For help proactively navigating your estate plan, contact the law offices of Queens probate lawyer Richard Cary Spivack.