DANDELION GUIDE: PLANNING AND SUPPORT

How Does Probate Work?

Settling the estate, legally

Probate is the legal process a court uses to oversee what happens to a person’s assets after they die. It makes sure debts are paid and property is distributed according to the deceased person’s will — or, if there’s no will, according to state law.

With planning, you can often reduce or avoid probate.

Probate 101

    • Court-supervised process after someone passes away.

    • If there’s a will, the court verifies it and ensures the executor/trustee carries out the instructions.

    • If there’s no will, the court applies state “intestate succession” laws to decide who inherits (often spouse, kids, or closest relatives).

    1. Filing with the court: A petition is filed to start probate.

    2. Appointing an executor/trustee or administrator: Executor/Trustee (if named in the will) or administrator (if no will) is given authority.

    3. Identifying and inventorying assets: Includes property, bank accounts, investments, personal belongings.

    4. Paying debts and taxes: Creditors are notified and must be paid before heirs receive assets.

    5. Distributing what’s left: The court approves final distribution to heirs/beneficiaries.

    • Time-consuming: Often takes 6–18 months, sometimes longer.

    • Costly: Court fees, attorney fees, and executor/trustee fees can eat into the estate (commonly 3–7% of the estate’s value).

    • Public record: Probate filings are usually public, so anyone can see who inherits what.

    • Living trust: Assets in a trust bypass probate.

    • Joint ownership: Property with “right of survivorship” passes directly to the co-owner.

    • Beneficiary designations: Accounts like life insurance, retirement, or “payable on death” bank accounts skip probate.

    • Small estate procedures: Some states offer simplified processes if the estate is below a certain value.

  • Anywhere from a few months (for small/simple estates) to over a year (for complex or contested ones).

Probate Process (varies by state)

    • A family member, executor/trustee named in the will, or another interested party files a petition in probate court.

    • The court schedules a hearing and notifies heirs, beneficiaries, and sometimes creditors.

    • If there’s a will, the person named as executor/trustee is usually approved by the court.

    • If no will, the court appoints an administrator (often a spouse or adult child).

    • This person becomes the “personal representative” of the estate.

    • The personal representative collects and lists all assets (See Family Sharing):

      • Real estate, bank accounts, stocks, retirement accounts

      • Personal property (cars, jewelry, household items)

    • They must also determine the value of each asset (sometimes with appraisals).

    • Creditors are formally notified and given a period (often 3–6 months) to make claims.

    • Debts, taxes, and expenses (like funeral costs, court fees, attorney fees) are paid from the estate.

    • The executor/trustee may need to:

      • Maintain property (keep up mortgage, utilities, insurance).

      • Collect income owed to the estate.

      • Possibly sell assets if needed to cover debts or make distributions.

    • Once debts and taxes are settled, the executor/trustee distributes what’s left to the heirs/beneficiaries.

    • If there’s a will, distribution follows its instructions.

    • If no will, state intestate laws decide who inherits.

    • The executor/trustee files a final accounting with the court.

    • The court approves, releases the executor/trustee from duty, and the estate is officially closed.

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