Our Probate Practice
Probate practice includes, but is not limited to:
- Trust and Estate Opening and Administration
- Representation of Executor, Administrator or Trustee
- Representation of Estate and Trust Heirs and Beneficiaries
- Executor/Administrator Services
- Trustee Services
Common Probate Questions
What is Probate?
Probate is the court-supervised process of gathering a deceased person’s assets, paying debts and taxes then distributing any remaining assets to the decedent’s heirs. The process includes:
- proving in court that a deceased person’s will is valid (usually a routine matter)
- identifying and inventorying the deceased person’s property
- having the property appraised
- paying debts and taxes, and
- distributing the remaining property as the will (or state law, if there’s no will) directs.
Typically, probate involves paperwork and court appearances by lawyers. The lawyers, executor/administrator and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person’s property.
How Does The Probate Process Work?
After your death, the person you named in your will as executor (or, if you die without a will, the person appointed by a judge) files papers in the local probate court. Then, relatives and creditors are officially notified of your death. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you’ve left. Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a few years. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property.
For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them. Eventually the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will (or if you die without a will, the parties designated by state law). Finally, your property will be transferred to its new owners. Property that passes outside of your will through joint tenancy, a living trust or through a beneficiary designation (retirement funds and life insurance) will not go through.
Who Is Responsible for Handling Probate?
In most circumstances, the executor named in the will takes this job. If there is no will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person’s assets.
What is the difference between a testate estate and an intestate estate?
In a testate estate the deceased person left a valid will and the estate will be distributed, usually by the executor named in the will, per the terms of the will. In an intestate estate the deceased person died without a will and failed to appoint an executor and beneficiaries. The court will appoint an administrator to handle the estate and the assets will be distributed per state law.