FAQ - Probate Administration
WHAT IS THE PROBATE PROCESS?
In a nutshell, the probate process is a court proceeding that establishes the validity of a will and provides legal oversight to ensure accuracy in accounting for a decedent’s assets, fairness in the treatment of heirs, and protection for the rights of the decedent’s creditors.
Each state provides, by statute and rule of court, various time limits and procedural steps to properly probate an estate. The process begins with the presentation of the will for probate. The probate process can take anywhere from a few months to many years, depending on the complexity of the estate and on whether there are any challenges to the validity of the will.
There are filing fees to the designated court, as well as attorney fees for the duration of the probate process.
WHAT ASSETS HAVE TO GO THROUGH DEATH PROBATE?
Assets which are titled in the decedent’s name alone must go through probate in order to be retitled into the name of his or her heirs. As an example, if I own some General Motors stock and only my name appears on the certificate, the only way my spouse or my children can gain ownership and control of that stock at my death is through probate. The probate court would actually issue an order assigning the ownership of the probate asset to my heirs. Pursuant to that order, the stock transfer agent would retire the certificate which had my name on it and reissue a certificate in the name of my heirs.
In contrast, assets which are owned by two or more persons as joint owners with right of survivorship do not go through death probate, as long as there is a surviving joint owner. Assets such as life insurance contracts that name specific individuals as beneficiaries also do not go through probate. And assets which are titled in a revocable living trust are not probated when the trust maker dies because they are titled in the name of the revocable trust, not in the name of the individual.
ARE PROBATE ASSETS READILY AVAILABLE TO THE FAMILY?
No. One of the major problems with probate is that the assets are—for the most part—tied up until the process is completed. There are some statutory allowances available for a widow, dependent children, and other family members. These allowances are meager at best and certainly cannot compare to what a family is used to in terms of having complete control over and access to all of a decedent’s assets.
To discuss your specific needs, call 1-614-760-1801