✩ FAQ: What is Probate?

Posted: November 1st, 2007 by Gaslowitz Frankel LLC

Probate is the judicial procedure by which a court oversees the disposition of a person’s property after his or her death. If there is a will, the provisions of the will determine how the estate is distributed. If there is no will, or if the will proves to be invalid, the estate will still go through probate, and the estate assets will be distributed in accordance with state intestacy laws.Probate laws and procedures vary from state to state. In some states like Georgia, probate is relatively straightforward, while in other states like Florida and New York, the process is cumbersome, requiring attention to many technicalities and details. Probating an estate generally includes:

  • Petitioning the court to probate the will;
  • Sending notice of the probate to named beneficiaries, other interested parties, and creditors of the decedent;
  • Collecting, inventorying, and if necessary, appraising the assets of the estate;
  • Collecting any payments, debts, and income due to the estate;
  • Paying any debts owed by the estate;
  • Filing federal, state, and local income taxes for the estate; and
  • Distributing the remaining estate assets to beneficiaries in accordance with the terms of the will, or in accordance with state intestacy laws if there is no will or if the will is determined to be invalid.

When an estate is probated, it becomes a matter of public record, meaning that anyone can find out the size and contents of the estate and names of the estate beneficiaries.

Time and Expense of Probate

Probate may be a time-consuming process. While it may take only one or two months to probate a simple estate, the process may continue for a couple of years, depending on the size of the estate and the complexity of collecting, valuing, and distributing estate assets. Any will contests or other challenges over the estate will naturally lengthen the duration of the probate process. A lengthy probate process can also be costly, although normally the expenses of probating an estate, including legal fees, are paid out of the estate assets.

Small Estates

Georgia and many other states have a simplified process for small estates that fall within certain guidelines. The simplified process will generally be less expensive and of a shorter duration than the normal probate process.

Intestacy

When a person dies without a will, or if the probate court determines that the will is invalid, the person is said to have died “intestate.” In that case, the state’s intestacy laws will determine who is to inherit the estate. The intestacy statutes establish a default inheritance scheme which generally provides that estate property goes the decedent’s spouse and children and then to parents and other close family members. If the decedent leaves a valid will, however, the provisions in the will control the distribution of estate assets, and the state intestacy laws are not applicable.

Do You Need to Consult an Experienced Probate Attorney?

While probating a small and uncomplicated estate may not be difficult, it is best to seek the advice of an experienced probate attorney. If you have been named as the executor of an estate, an attorney can guide you through your state’s probate process; explain all of the duties of an executor; assist with filling out court forms, sending out required notices of probate and meeting court deadlines; and suggest ways to avoid or mitigate potential estate claims from other parties. You should consult an attorney promptly if any legal challenges are raised regarding a will under which you serve as executor.

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