Probate Process Questions

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  1. What is probate?

  2. Is probate necessary?

  3. Does all property go through probate when a person dies?

  4. Do life insurance or retirement benefits need to go through probate?

  5. Do living trusts go through probate?

  6. How much does probate cost?

  7. How long does probate take? (see time line)

  8. Where will the probate hearing be?

  9. Who is in charge of the probate process?

  10. Who can be the personal representative?

  11. Who is not allowed to be the personal representative?

  12. Does the Court supervise the personal representative?

  13. What does the personal representative do?

  14. If I am named as executor in a Will, do I have to serve?

  15. If I serve as executor, will I get paid?

  16. What happens if the personal representative fails to perform his or her duty? (see article)

  17. Do I have to use a lawyer for the probate process?

  18. What if someone objects to the Will?

  19. Who can contest a Will?

  20. When can a Will be contested?

  21. What if there is no Will? (see locating the will)

  22. What happens if we cannot find a Will?

  23. What if the decedent owned land in more than one state?

  24. How do creditors get paid?

  25. If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?

  26. How are taxes handled in probate?

  27. Am I responsible for paying the rest of my deceased spouse’s bill?

  28. How can I find out if there was a Will?

  29. What if someone dies and I have the Will in my possession?

  30. As an heir, how do I stay informed of what is happening in the probate case?

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6. Probate process question: How much does probate cost?

The cost of probate is set by state law.

When all the costs are added up – these may include appraisal costs, executor's fees, court filling fees and certified copies, costs for a type of insurance policy known as a "surety bond," plus legal and accounting fees--probate can cost from 4% to 7% of the total estate value, sometimes more.

If someone contests the Will, there could be thousands of dollars litigation costs.

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7. Probate process question: How long does probate take?

States can require that probate be completed within a stipulated time period, if estate taxes are to be filed more time is given. If probate has not been completed by that time, the personal representative must file a status report to the court to explain what still has to be done and how much time that will take. Talk to your attorney for specifics.
If the personal representative does not report to the court, the beneficiaries can ask the court to order him or her to file an accounting or take other actions to close probate. The court can remove the personal representative and appoint someone else.

Sometimes there are circumstances that can make probate take longer. If there is a Will contest (a claim filed with the court that all or part of the will is not valid), or the size and complexity of the estate requires extra time, or it is hard to find beneficiaries, the process can drag out. Some probate cases take years to resolve.   Go to estate settlement timeline

8. Probate process question: Where will the probate hearing be?

At the probate court house.   If you have to file a probate petition in another state because there is real property in that state, the courts in that state may use a different name. In New York , for example, the probate court is known as the Surrogate Court.  

9. Probate process question: Who is in charge of the probate process?

If there is a Will, the person named as executor will usually be appointed as the personal representative – this means s/he is responsible for managing the estate and following probate rules and procedures. Go to free probate forms.com

The executor has no authority to act as personal representative until s/he is appointed by the court and formal "Letters Testamentary or Administration” are issued by the Court Clerk.

If there is no Will, or if the Will doesn't’t name an executor, or the person named as executor in the Will is unable to be executor or does not want to be executor, the probate court appoints someone called an administrator to handle the process. The Court usually chooses the closest living relative, or a person who will inherit some portion of the decedent's assets. 

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10. Probate process question: Who can be the personal representative?

The personal representative does not have to be a legal or financial expert. But, s/he must have reasonable prudence and judgment and be very careful, honest, loyal, impartial and diligent. This is called a "Fiduciary duty" -- the duty to act with good faith and honesty on behalf of someone else.

The personal representative should have good organizational skills and be able to keep track of details. It is preferable if he or she lives nearby and is familiar with the decedent's finances. This makes it easier to do tasks and find important records. 

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