Ins and Outs of Probate Court

“When it comes time to divide an estate, the politest men quarrel.” -Ralph Waldo Emerson


What is probate?

It is the court-supervised process of dividing and lawfully transferring assets after someone passes away. More specifically, probate is the process of transferring title of assets out of the name of the deceased to their heirs and beneficiaries. Probate is necessary if the deceased had only a last will and testament or no estate planning documents whatsoever. However, probate isn’t a mandatory part of estate administration, so let’s discuss the ins and outs of probate court and some ways to avoid it.

Why probate?

Court supervision is required to prove the validity of a last will and testament, which is why attorneys sometimes call wills “tickets to probate court”. If there is a last will and testament, the “personal representative” named in the will files a petition with the court to open the will to probate.

While wills may be tickets to probate court, not having a will is much more complicated. A probate court, without specific guidance from the deceased, must step in to divide the estate amongst surviving relatives using default state statutes. If there is no will, the court will appoint a “personal representative”.

Probate may also be necessary if the decedent had a trust that was not properly funded. A trust only avoids probate if the assets were properly retitled in the name of the trust. For example, the deed to a house must be retitled so that the trust is the owner of the home. If an individual sets up a trust but never transfers the deed, probate is likely necessary to transfer the title of the home.

Probate Step-by-Step

  1. Petition the court to open a probate and admit the will (if there is one)
  2. Notify all beneficiaries of the administration of the estate
  3. Notify all creditors by publishing in the newspaper
  4. Collect and inventory the deceased’s assets
  5. Pay debts
  6. Pay any federal and state taxes
  7. Retitle and distribute the assets to beneficiaries
  8. File accounting of distributions made and close the estate

Dying without a will or with a trust that has not properly transferred your assets can get pretty sticky with unnecessary grief and a costly burden for your loved ones. The ins and outs of probate court are not fun, probate can take anywhere from six months to several years to complete and often comes with expensive court fees and the need to hire an attorney.

The good news is that there are several ways to avoid probate, including creating a living trust. This leads us to an important question: If a properly funded trust avoids probate, how do assets held in trust get transferred?

Trust Administration

Assets held in trust still need to be distributed to beneficiaries. This process is called trust administration. The main difference between probate and trust administration is the need for court supervision. A trust administration is NOT a court-supervised process and serves the purpose to transfer property from the deceased to their beneficiaries through the stipulations in their revocable living trust.

When a person dies leaving a valid trust, a trust administration becomes necessary to carry out the wishes of the deceased as written in their trust. The person responsible for that is the appointed trustee in the trust document. As the trust administrator of an estate, you will have many duties beginning immediately after a loved one’s death.

Trust Administration Step-by-Step

  1. Collect and review all estate planning documents
  2. Create an inventory of all assets in the trust
  3. Meet with an attorney and tax advisor
  4. Notify beneficiaries and other involved parties
  5. Determine the deceased’s debts
  6. Administer the estate
  7. Pay necessary taxes
  8. Distribute assets to beneficiaries

A trust can be administered without court involvement, yet there are still several responsibilities that can be overwhelming without the help of an attorney.

The advantages of a trust administration over a probate proceeding include a quicker distribution of property to beneficiaries, more privacy due to no court supervision of the process, and in most cases, a much less expensive process.

If you are in need of estate administration help, Dana and Associates is here for you. Whether you need a probate or trust administration, call to schedule a free Family Administration Session today.