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About Probate Law
Probate law involves the legal process behind properly distributing a deceased person's estate to his or her heirs. This process generally follows these basic steps:
- Someone is named as the administrator -- also known as the executor -- of the estate, either by the deceased person's will or by court appointment.
- The court verifies that the deceased person's will is valid.
- The deceased person's property is identified, inventoried, and appraised so that assets may be distributed or sold.
- Debts or taxes owed by the deceased person are paid.
- The remaining assets are distributed in accordance with the will, or---in the absence of a will---by state law.
What Does a Probate Attorney Do?
If you've been named administrator of a loved one's estate, it is encouraged that you seek advice from an experienced probate attorney, as they will know the legal ins and outs of the process. Some of the services that a probate lawyer can provide include:
- Assisting with the sale or distribution of estate property and assets.
- Obtaining appraisals of estate-owned property.
- Determining the taxes that are owed on the property.
- Representing you in court if there should be challenges to the estate brought by beneficiaries.
- Locating and securing assets that are involved in probate as well as those that aren't. An example of a non-probate asset would be a life insurance policy.
- Preparing and filing all documents required by probate court, paying heed to the deadlines involved in these filings.
- The collection and disbursement of life insurance proceeds.
- Dealing with the deceased's retirement plans, such as IRAs and 401(k)s.
- Advising their client as to any final debts owed by the estate.
- Settling disputes between administrators and beneficiaries.
- Re-titling the deceased person's real estate into the names of the appropriate beneficiaries.
- Distributing the remainder of the estate to beneficiaries after applicable debts and taxes have been paid.
Frequently Asked Questions About Probate
What happens if there is no will?
If a person dies without a will, his or her assets will be distributed according to state law. The court will appoint an executor of its choice to oversee the distribution of the assets. Individuals can challenge the will, with the court making a decision as to the appropriate beneficiary for each asset.
How long does probate take?
According to information from the American Bar Association, the average estate completes the probate process within six to nine months after the initial filing in court. However, this timeline can grow quite a bit if there are challenges to the will or difficulties locating and appraising property belonging to the estate.
Does all property have to go through probate?
Not necessarily. If property is jointly owned, then ownership will remain with the surviving owner. Additionally, non-probate assets such as the proceeds from a life insurance policy, are payable upon death to the beneficiary specified in the policy.
What does "contesting a will" mean?
It means that you disagree with the dispensation of assets in accordance to the will for a specific legal reason such as incapacity, fraud, undue influence, or duress. Contesting a will is a legal process of its own and one that requires court filings.