7 min read

When Probate is Required & What Documents You'll Need

Wrapping your head around the legal jargon of death-admin is key to reducing stress and overwhelm at an already difficult time. Today, we tackle probate; what it is, what it means for you and how long it takes. Offering a flashlight of understanding to help you navigate the twists and turns, and jump through the various hoops within the complex jungle of legal lingo.

Probate legal meaning

Probate. Sound like a familiar word which if pressed you'd have a vague explanation to what it actually involves? Whether you're currently trying to navigate the probate process in the aftermath of a death, or armour up with some legal knowledge to help prepare you for the future, this article is here to clarify exactly what probate means. Read on to finish this blog post with clear answers to:

  • What does probate mean?

  • How does probate work?

  • What documents are required for probate court?

  • How long does probate take?

  • Can you avoid probate?

In the meantime, if your in a rush here's the quick-fire takeaways for what’s up next:

  • Probate is the legal process of settling the estate of a deceased person
  • During probate court, the validity of the will is established & the executor then carries out these wishes on how to distribute the estate, as well as settle up any debts or taxes
  • Probate can be a lengthy process, but varies by state and size of estate
  • Trusts are one way probate can be avoided

What is Probate?

Probate is the legal, court-supervised process of settling the estate of a deceased person. It involves the validation of a last will and testament, if one exists, and the distribution of the deceased person's assets to their heirs or beneficiaries.

The ultimate aim is ensuring the deceased person's assets are distributed according to their last will and testament or, if there’s no will, according to the laws of the state where the deceased person resided.

What happens next: walking you through the probate process

The probate process runs through various steps before it can be completed, and the deceased person’s assets distributed. This can be summarised as:

  1. Executor of will appointed

  2. Executor files petition to open probate process

  3. Inventory of assets collected

  4. Debts paid off

  5. Assets distributed to beneficiaries

We’re at stage 0 when a person first passes away. Their assets are automatically frozen until the probate process is complete; meaning no one can access the deceased person's bank accounts, sell their property, or distribute their assets until the court has approved the distribution.

To start, the executor of the will is appointed to collect the deceased person's assets, pay off any debts and taxes, and distribute the assets to the beneficiaries or heirs. The personal representative is typically named in the deceased person's will, but if there is no will, the court will appoint someone to serve in this role.

Once appointed, the executor of will must file a petition with the probate court to open the probate process. Once the petition is filed, the court will issue a notice to all interested parties, such as heirs or beneficiaries, and a hearing will be held to determine the validity of the will and the appointment of the personal representative. If the will is found to be valid, the court will approve it and the personal representative will begin the process of collecting and distributing the assets.

This starts with the executor making an inventory of all the deceased person's assets and assigning value. This includes things like real estate, personal property, and bank accounts. Next, the executor must settle any debts and taxes that are owed by the deceased person's estate. This includes things like credit card balances, mortgages, and taxes. At this stage, any creditors of the deceased person's passing must be notified and given the opportunity to file a claim against the estate.

After liabilities have been settled, the remaining assets can be distributed to the beneficiaries or heirs. This will follow the wishes outlined in the deceased person's will or, if there is no will, according to the laws of the state where the deceased person resided.

In between these key stages of action, there's behind the scene paperwork and various applications to fulfil. Next, we take a deeper look at the legal specifics you’ll find helpful to wrap your head around, before embarking on the probate process.

What happens in probate court?

There's several official, probate form documents required by the court, at all of the above stages. At the first stage, a probate application form is required. This will distinguish ‘estate’ assets (owned solely by deceased) and ‘non-estate’ assets (property held jointly; including property and bank accounts), and will be filed by the executor, alongside an affidavit which confirms the will as the last will and testament of the deceased, confirms the death of the deceased and outlines the assets of the estate.

Other probate forms required during the various stages include:

  • The Will
  • Death certificate
  • Inventory of assets and debts
  • Petitions
  • Notice of hearing
  • Final accounting
  • Proof of notice to creditors
  • Proof of notice to beneficiaries
  • Proof of payment of debts and taxes
  • How long does probate last?

The timescale of the probate process can vary depending on the complexity of the estate and the number of beneficiaries or heirs. Simple estates with minimal assets, debts and taxes may take several months to be resolved. In contrast, more complex estates can take years to be settled. Where there is a will contest or disputes among the beneficiaries, the process can be particularly drawn out.

Generally however, the probate process can range from six months to two years to complete. It’s also worth keeping in mind the different probate laws and procedures which vary from state to state, and have bearing on how long the probate process lasts. Trusts add another game changing feature to the mix- offering to shorten or replace the need to go through probate courts. With this in mind, we take a deeper look at whether probate is always necessary.

Is probate always required?

Probate can be a drawn out, stressful process. It’s the last thing you want when trying to move on with life after a death, and move forwards with healing from grief. There are certain situations where the assets of the deceased person's estate can be transferred without going through the probate process. These probate-exempt situations include:

  • Assets in trust: As mentioned above, if the deceased person had a trust, the assets in the trust will not have to go through probate, as they can be directly transferred according to the terms of the trust. This can greatly reduce the length and complexity of the probate process, or avoid it altogether.

  • Small estates: In some states, the transfer of assets for a small or low value estates can be streamlined without the need for probate

  • Jointly owned assets: Assets that are jointly owned with the right of survivorship, such as bank accounts or real estate, will pass to the surviving joint owner automatically, and do not go through probate.

  • Beneficiary designations: Assets such as life insurance policies or retirement accounts that have designated beneficiaries, will pass directly to the beneficiaries named, also bypassing the probate process.

It’s worth noting that even if probate is not mandatory, the executor of will may still choose to follow this procedure to avoid any beneficiary disputes, and ensure all taxes are paid, and assets are properly distributed.

To Wrap Up

So now you know. Probate is the legal process of settling the estate of a deceased person. It involves the validation of a last will and testament, if one exists, and the distribution of the deceased person's assets to their heirs. It can be lengthy, stressful but avoided in certain situations.

Is probate stress something you want to avoid for your family? Get in touch with Safewill to set up a trust today. Or, if you're just wanting to get organised, phone for a chat on how we can help you plan your estate, write your will and appoint your executor. Available 7 days a week on 1800 103 310 , or live chat now.

Last updated 17th January 2023
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Hannah Comiskey
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