What is a probate proceeding?

What is probate?

The dictionary definition of probate is the official proving of a will. A probate proceeding occurs after a person has died and the court is in the process of checking their will. This process needs to start in the state where the deceased person lived at the time of their death. The probate court will supervise, distribute, and administrate the decedent’s estate, and settle any legal disputes regarding the estate or the validity of a will. The executor (now called the personal representative) of the decedent’s will is in charge of making sure all their affairs are settled, such as by settling their debts. During the probate proceeding, the executor of the will identifies the deceased person’s property, pays off any debts, sees who will inherit the estate, and makes sure they are the ones who inherit it.


Timeline of probate process

Probate is a lengthy process, and the required time varies based on the state it is filed in and the decedent’s living conditions and properties. Factors may include the size of estate, tax issues, amount of taxes and debt owed, number of heirs, and more. The probate process typically takes about 24 months, or 2 years, beginning from the death of the decedent. However, depending on the case and issues, it could also take years or decades to conclude.

The basic probate process includes filing a petition, sending notice to creditors, heirs, and beneficiaries, collecting the probate property of the decedent, paying all debts, taxes, and claims owed by the estate, settling any disputes, and finally distributing the property to designated beneficiaries. Here is a general and descriptive (but not guaranteed) 24 month period outlining the probate process:

Duration Probate Process Description
1-4 months
  • File a petition for probate with a will and determine who the executor will be.
  • Identify all heirs and relatives.
  • Prepare death certificates and the necessary waivers, and consents.
3-4 months
  • After receiving the Letters of Administration from the Court, the executor will prepare for a court hearing on the petition for probate.
  • Issue relevant documents including the Letters of Administration, Letters testimony, orders for probate, duties, and liabilities.
3-5 months
  • If required, issue probate bond.
3-6 months
  • Executor must notify all creditors, beneficiaries, and heirs that the estate is in probate.
  • Consult with an accountant on taxes and to prepare the following forms: Federal Estate Tax return, Form 706, Form 1040, and 1041.
6-12 months
  • If the decedent had received medical benefits, notify the Department of Health Services.
  • File the inventory of assets included in the estate and appraise the property in order to calculate the estate’s value and present them to the court.
  • Accept or deny creditors’ claims and decide how to pay the necessary bills, debts, taxes, estate administration costs, and family allowances.
  • If an heir is a resident living outside the state, send notice to the franchise tax board.
7-15 months
  • File a petition for the final distribution and accounting of estate, determining the distribution of assets to beneficiaries and which property needs to be sold.
8-16 months
  • Tax clearance letters: pay creditor and tax bills in order to close the creditors’ claims.
  • Hearing for the petition on the final distribution and accounting for beneficiaries, and wait for the order of approval.
9-24 months
  • Deadline for filing a renunciation or petition on final accounting.
  • Prepare Beneficiary Agreement
  • Final discharge order
  • Final distribution of the remaining assets or estate funds to the rightful heirs.
  • Request for the estate to be closed after submitting records and receipts of the distributed estates in order to conclude probate.

Associated costs of probate process

The probate process usually has monetary obligations that need to be paid out of the estate assets before distributing the remaining assets to the named beneficiaries. Probate costs commonly take up approximately 3% to 7% of the estate value, although that can vary based on many factors. These costs may include creditors’ claims, debts, taxes, executor fees, attorney fees, court fees, appraisal costs, and accounting fees. Probate filing fees are charged by the court in relation to the value and size of the estate. The legal fees from meeting with attorneys usually go by hourly fee, flat fee, and percentage, which are based on the attorney’s expertise, experience, and location. The fee arrangements vary depending on your situation and the services that you will need.

Issues that may occur

A will is only valid after it has gone through the lengthy probate process. In addition, it is expensive because of the court and attorney fees involved. However, without the help with an attorney, the probate process will only be more difficult, costly, and time-consuming. Some issues that may occur are:

  1. The decedent did not leave a will. It is hard to distribute the assets of a decedent who died without a will. But even so, the decedent’s assets and property has to be transferred to someone else. In the case that the probate court determines the will to be invalid, or if the decedent did not leave a will, the decedent’s estate will be transferred according to the state laws of estate distribution, which vary between states. However, if a person dies with a will, the assets will be transferred to the beneficiaries designated in the will after the will has been validated through probate.
  2. A will can be contested, which is a formal objection against the validity of a will. Contesters may argue that the decedent may not have been in sound mind or their best mental state when constructing their will or that they were influenced or controlled by others to manipulate their will. Also, contestants may question whether it can be proven that the will is indeed the last and final updated will of the decedent. This can complicate the probate process especially without the help of an probate attorney.
  3. If the decedent’s assets are not allocated and inventoried, or if the debts, taxes, and other fees have not been settled, then the decedent’s estate cannot be distributed until they are settled. Depending on the size and value of the estate, the amount of assets, the amount of debts, tax complications, or if any probate issues or other lawsuits arise, then the probate process can take additional months or years to conclude.

Need help with your probate proceeding?

It is strongly recommended to hire an experienced attorney ahead of time to handle probate proceedings as she will settle your issues, prevent you from experiencing great financial loss, and will only serve to protect you and your needs. If you need an experienced probate and trust & wills attorney, call the Law Office of Inna Fershteyn and Associates, P.C., today.