What is a probate court?
The probate court is the part of the justice system that deals with matters such as wills, estates, custody and guardianship, and the commitment of people with mental disabilities to agencies designed to help them. For example, when a will is challenged, the probate court is responsible for adjudicating the authenticity of the document and the cognitive stability of the signatories. The court also decides who gets what part of the deceased’s assets based on instructions in the will or – unless there is – other existing law.
- Probate courts deal with legal matters such as estates, guardianships, and wills.
- Probate attorneys are often hired to administer and navigate probate court.
- In many cases, a probate court case can proceed with or without a will.
- With a will, the probate court is responsible for adjudicating the authenticity of the document and the mental stability of the signatory.
- If there is no will, the probate court will distribute the deceased’s assets to their next of kin.
Understanding Probate Courts
The role of the probate court is to ensure that the deceased’s debts are paid and assets are distributed to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left by a recently deceased person. Probate is multifaceted because it covers the overall legal process for dealing with the assets and liabilities of the deceased, the court that administers the process, and the actual distribution of the assets themselves.
Individual states have specialized probate courts. Some states don’t call it a probate court, but rather a proxy court, orphan court, or justice court.
Probate Court Procedures
The probate process is initiated when a person files an application for probate with the state’s probate court system. The petition is usually filed by a family member of the deceased or a person named in the deceased’s will. The probate court then issues an order appointing someone to be the executor or administrator of the deceased’s estate. The executor or administrator is responsible for distributing the deceased’s estate to the appropriate beneficiaries, among other administrative duties. A probate attorney is often hired to help with complex probates.
When a person dies, the probate court determines whether the person left a will. If so, the court will probate the will, which means it will investigate the validity of the will itself. If the will is valid, the probate court will appoint an executor to distribute the deceased’s assets to the appropriate beneficiaries. If the will is invalid or disputed, the court will review and decide the matter.
probate court without a will
When a person dies without a will, the probate court will distribute the person’s assets to their next of kin. This is called the law of intestate succession, and it outlines the distribution mix among surviving spouses, grandchildren, siblings, parents, aunts, uncles, and other relatives.
Without or without a will, it is likely that a trip to probate court will be required to settle the deceased’s affairs. However, there are ways to simplify the probate process before death, including creating a living trust, clearly naming beneficiaries on all investments, bank and retirement accounts, and establishing joint ownership of certain assets.
Examples of Probate Courts
Many district courts provide full instructions on how to begin the probate process. E.g, New York State Unified Court System Allows individuals to search by their county and court type to begin the probate process.
Probate Court FAQs
What happens at a probate court hearing?
At the probate court hearing, the judge will list the executor’s duties, including contacting any beneficiaries, creditors, assessing their assets, and paying any outstanding creditors and taxes. Usually, after the second hearing, the judge ensures that all of these items are completed and that the estate is closed so that the transfer of funds and estate can begin.
Do you have to go to probate court when someone dies?
Each state has specific probate laws to determine what is required. Unless someone dies without assets or descendants, probate is usually still required to settle the deceased’s remaining affairs, including debts, assets, and paying their final bills and taxes.
How do you avoid probate court?
While avoiding probate court altogether can be tricky, some ways to avoid probate include creating a living trust, clearly naming beneficiaries on all investment, bank and retirement accounts, and establishing joint ownership of certain assets.
How long does probate take?
The length of time depends on the assets of the deceased, the complexity of the will and other factors. While probate can vary from a few weeks to several years, the average time it takes to complete a will is about nine months.
How do you challenge in probate court?
Probate court websites often require a form to be filled out to file an objection, whether it is against tampering, forgery or otherwise. These forms must be submitted at the beginning of the process.
After someone dies, the grief of the loss of a loved one can be a challenging time for family, friends and loved ones. Unfortunately, the probate process can add additional financial and administrative burdens to determine what to do with an individual’s assets and property. Whether there is a will or not, the probate process is essential to ensure that everything is in order.