The word probate comes from a Latin root meaning “to prove.” In other words, probate is a process whereby the will of someone who has died, the decedent, is proven to be valid. In addition, the court has jurisdiction to supervise marshalling of the decedent’s assets, paying the decedent’s debts, and finally, distributing the rest of the estate to the beneficiaries.
That is all that probate really is – an orderly, legal process for passing of the assets to the decedent’s beneficiaries. The authority of the court is present – that’s what “jurisdiction” means – to ensure that the property is passed the way that the decedent intended after his or her debts are paid. The probate process comes into play, however, only if the decedent left a will and has assets greater than $150,000 titled in his or her name alone. If the decedent died without a will, then the state’s laws of intestate succession become important. If the decedent left a trust or made other arrangements for passing property (such as designating a beneficiary on a life insurance policy or placing a joint tenant on a bank account), or if the decedent’s estate is valued at less than $150,000, then there may be no need for probate.
What follows is a very general overview of the probate process. If you are faced with acting as someone’s executor, you should speak with an attorney about the specific things you should do. When someone dies with a will, an early step is to find the will, and file it with a petition for probate with the Superior Court. You must schedule a hearing, where the court agrees to the appointment of the executor named in the will and issues “letters testamentary,” which enable the executor to manage the decedent’s affairs while the estate is open, that is, before the estate is distributed to the beneficiaries. Such a hearing is often a quick matter.
Once the letters testamentary are in hand, the executor or administrator (the executor is someone named in the will; the administrator is appointed upon petition) sets about determining what assets and debts the decedent left, securing the assets, and paying the debts. Within four months after his or her appointment, the executor or administrator is required to file an inventory of the estate with the court. Only after this inventory is filed can the estate be distributed, although it is sometimes possible to arrange for an earlier partial distribution of funds.
Also, four months after the hearing in which the estate is opened, creditors’ claims are cut off. That is, someone to whom the decedent owed money, as long as he was properly notified of the probate, cannot come later to claim against the beneficiaries.
Finally, about seven to twelve months after the hearing, the probate court orders the estate distributed. At this time, attorney’s fees and executor’s fees are paid. The attorney receives $4,000 of the first $100,000 of valuation of the estate and then is paid at a decreasing rate thereafter. For example, for a $200,000 estate will owe approximately $7,000 to the attorney. This fee is less than the fee paid to a real estate agent for selling a house. As the real estate agent ensures that the sale of the house is properly done, the attorney ensures that all the legal work pertaining to transferring the entire estate is properly done. The executor is entitled to identical fees, but since executors are often beneficiaries of the will, the executor’s fee is often waived.
The probate process, although relatively simple and straightforward, can be complicated by various problems. There may be problems locating assets, determining ownership of assets, or dealing with will contests and other claims against the estate, but probate is not designed to be a treacherous, difficult process. Understanding a little bit about it can help people to deal with the process better.