June 16, 2017

Probate FAQs

  1. Do I really need to go through probate? Probate is the legal court proceeding through which the affairs of a decedent are settled and the property of the decedent is transferred to those who are entitled to it. If all of the decedent’s property has passed to others by operation of law – – for example, by joint ownership or beneficiary designations – – there is usually no need for probate.

  2. Why can’t I just show the will to the bank and get access to the decedent’s accounts? A will is not a self executing legal document. To be given legal effect, a will must be admitted to probate by the court. To be admitted to probate, the original of the will must be shown to have been signed in accordance with the requirements of law and to be the last will of the decedent. Without such proof, a bank would have no way of knowing whether the will presented to it was in fact the proper and last will of the decedent.

  3. Does probate allow the government to take part of the estate? The only money the government receives in a probate proceeding is the filing fee which currently is $400. Otherwise, probate does not cause any additional taxes or fees to be imposed that would not otherwise be imposed on the estate.

  4. What happens to the debts of the decedent in probate? The debts of a decedent are not forgiven upon death. Any actual or potential creditor of the decedent is an interested person in the probate proceeding and entitled to receive a Notice to Creditors. This notice informs the creditor that he has a limited and fixed period of time within which to file a claim in the estate. The notice is also published in a newspaper to give notice to creditors who are not known. If a creditor does not timely file his claim, then the claim is forever barred. If a claim is filed, the claim can be objected to if necessary and the dispute will be resolved in a lawsuit. If the claim is not objected to, then that creditor is entitled to be paid from non-exempt assets in the order of priority established by law. Certain property of the decedent, such as his home, is exempt from the claims of creditors. Certain creditors, such as funeral bills, have a priority in payment. All of these matters are sorted out in the course of the probate administration.

  5. Doesn’t probate take years to complete and cost a fortune? The administration of the probate estate of a particular decedent is only as complex, and hence time consuming and expensive, as are affairs of the decedent at the time of death. For most estates, probate takes from as short as two weeks to eight months. The expense varies greatly but is modest for most estates. If a probate administration is extended or becomes expensive, it is because there are disputes or complications that have risen not as a result of the probate proceeding itself but other factors.

If you still have additional questions, we are here to help. Please contact us using the form below, or give us a call at 1-407-656-1576.

Eric S. Mashburn