File a probate, wind up an estate, transfer assets, or commence probate litigation.
As a property law firm, we focus heavily on probate law, including estate administration and probate litigation. Our property expertise runs deep, allowing us to handle a wide variety of probate and estate matters, even the complicated or litigious ones.
Probate and estate issues generate a lot of questions.
So let’s start with some free answers.
Browse common questions below, or send us a message with your initial probate / estate questions.
Probate definition: what is probate?
In short, probate is necessary to legally transfer ownership of a person’s assets to their heirs after they die. Probate is a legal process that takes place after a person’s death, during which their estate, including assets and debts, is managed and distributed according to their will and the law. This process is essential for the proper transfer of property and possessions to the rightful heirs or beneficiaries, as well as ensuring that the deceased’s debts are settled. Probate also plays a crucial role in maintaining a structured system for managing estates, preventing potential disputes among family members, creditors, and other interested parties, and ultimately upholding the wishes of the deceased.
When is probate required?
Probate is typically required when a person passes away and leaves behind assets that need to be distributed among heirs or beneficiaries. Probate also provides judicial oversight in various situations, such as when the will is contested or unclear, when there are outstanding debts to be paid, or when the estate is complex and requires careful management. Probate may also be required when the deceased owned real estate in multiple jurisdictions or states, as the title transfer process must be handled according to the laws of each jurisdiction or state.
When is probate NOT necessary?
Probate may not be necessary in certain situations, such as when the deceased’s assets are held in joint tenancy with right of survivorship or when they have designated beneficiaries for specific assets like life insurance policies, retirement accounts, or payable-on-death bank accounts. In these cases, the assets can pass directly to the surviving joint owner or named beneficiary, bypassing the probate process. Additionally, probate may not be required for small estates that fall below a specified value threshold, as determined by the laws of the particular jurisdiction or state. These small estates can often be administered through a simplified process or affidavit, allowing for a quicker and less costly distribution of assets to the heirs or beneficiaries.
What is the probate process?
While the specifics of the process can vary depending on the jurisdiction and the estate’s complexity, the general steps are the same everywhere. First, a petition is filed with the probate court to open the estate and appoint an executor (if named in the will) or an administrator (if there is no will or the named executor cannot serve). Next, the executor or administrator notifies the deceased’s heirs, beneficiaries, and creditors of the probate proceedings. The estate’s assets are then inventoried and appraised to determine their value. Following this, the deceased’s debts, taxes, and other expenses are paid from the estate’s assets. Finally, once all debts and expenses have been settled, the remaining assets are distributed to the heirs or beneficiaries according to the will or the laws of intestacy.
Can you probate without a will?
Yes, you can probate without a will. When an individual dies without a will, their estate generally goes through a process called intestate estate administration or intestate probate. Intestate administration follows the same general steps as probate with a will, but the distribution of assets is determined by the laws of intestacy in the deceased’s jurisdiction, rather than their personal wishes outlined in a will. In this situation, an administrator is appointed by the probate court to manage the estate, notify heirs and creditors, pay outstanding debts and taxes, and ultimately distribute the remaining assets to the deceased’s legal heirs according to the intestacy laws. These intestacy laws often prioritize the deceased’s surviving spouse and children, followed by other close relatives, to ensure a fair and orderly distribution of the estate among the family members.
Why is probate necessary if there is a will?
Probate is necessary even when there is a will because it serves to authenticate the will and ensure that the deceased’s wishes are carried out legally and appropriately. The probate process provides a structured system for the estate’s administration, confirming the validity of the will, appointing an executor, and overseeing the distribution of assets. Additionally, probate ensures that the deceased’s debts, taxes, and other financial obligations are settled before the distribution of the remaining assets, protecting both the heirs and the creditors involved. Furthermore, probate offers a level of transparency and protection for all interested parties, including the heirs, beneficiaries, and creditors.
Do you need a probate lawyer?
While it is not legally required to hire a probate lawyer, having one can be beneficial, especially in cases where the estate is complex or there are potential disputes among heirs or creditors. More importantly, most people choose to hire a probate lawyer because they do not have the time or inclination to learn all the aspects of probate law and civil procedure required to commence and carry a probate action through to completion. A probate lawyer, also known as an estate or trust attorney, can provide guidance and assistance throughout the probate process, ensuring that all legal requirements are met and that the deceased’s estate is administered efficiently and correctly. In cases where the estate is relatively small and straightforward, with a clear will and no anticipated disputes, it might be possible for the executor or administrator to navigate the probate process without legal assistance. However, even in those cases, it is recommended that the person handling the probate process consult with an attorney for general advice or purchase forms and other resources from a probate attorney.
How and when to probate a house?
Probating a house becomes necessary when a homeowner passes away, and the property must be transferred to the rightful heirs or beneficiaries. The process typically begins when the executor or administrator of the estate files a petition with the probate court, opening the estate and initiating the probate process. It is advisable to start the process as soon as possible after the homeowner’s death to ensure a timely and efficient transfer of ownership. During the probate process, the house may need to be appraised to determine its value, which will be included in the overall inventory of the deceased’s assets. The court will then ensure that any outstanding debts, taxes, or other financial obligations associated with the property are paid before transferring the title to the heirs or beneficiaries. This transfer of title is crucial in establishing the new owners’ legal rights to the property. Depending on the specifics of the estate and the jurisdiction, the entire probate process can take anywhere from several months to over a year.
Probate court definition.
A probate court is a specialized court within the legal system that handles matters related to the administration of deceased individuals’ estates. This includes validating wills, appointing executors or administrators, overseeing the distribution of assets, and resolving disputes among heirs, beneficiaries, and creditors. Probate courts also have jurisdiction over guardianships and conservatorships, ensuring that the best interests of minors, incapacitated adults, or individuals with special needs are protected. The probate court’s primary function is to provide an orderly and legally structured process for managing and distributing the assets of a deceased person, ensuring that their debts are settled, and their property is transferred according to their wishes, or in the absence of a will, according to the laws of intestacy. The probate court operates under the laws and regulations of the specific jurisdiction in which it is located, and its procedures may vary depending on the particular state or country.
How much are estimated probate costs?
Probate costs can vary depending on the size and complexity of the estate, as well as the specific court and attorney fees involved. Generally, probate costs can be broken down into a few categories: filing fees, attorney fees, and miscellaneous expenses such as appraisal fees, publication fees, and bond premiums.
Filing fees for opening a probate case can range from $200 to $400, depending on the county. Attorney fees can vary widely based on the level of service and expertise required, as well as the attorney’s hourly rate or flat fee arrangement. For a very simple, uncontested probate case, attorney fees may range from $2,500 to $5,000 or more. However, for more complex cases or those involving disputes among heirs, the fees can be significantly higher, reflecting the variable costs of general civil litigation.
Miscellaneous expenses, including appraisal fees for valuing estate assets, publication fees for required legal notices, and bond premiums for executors or administrators, can also add to the overall cost of probate. While it’s difficult to provide an exact estimate without knowing the specifics of an individual case, the total cost for probating an estate could range from a few thousand dollars for a simple estate to tens of thousands of dollars or more for a larger, more complex estate. It’s important to consult with a probate attorney to get a clearer understanding of the potential costs associated with your specific situation.
Who pays probate attorney fees?
Probate attorney fees are typically paid by the estate of the deceased person. The executor or administrator, who is responsible for managing the estate, will use the estate’s assets to cover the attorney fees and other costs associated with the probate process. These fees are considered an administrative expense and are generally paid before the distribution of assets to the heirs or beneficiaries.
In some cases, if the estate does not have sufficient funds to cover the attorney fees, the heirs or beneficiaries may need to contribute to these costs. However, this scenario is relatively rare, as the probate process is designed to ensure that all debts, taxes, and expenses are paid before the distribution of assets. It’s essential to work with a probate attorney who can provide guidance and help manage the estate efficiently to minimize costs and ensure a smooth probate process for all parties involved.
Is probate the only option?
Sometimes you don’t need to file a full probate to transfer title to an asset. For a longer list of possible tools for transferring, see our Title Services Page. Possible options include a quiet title action, quitclaim deed, or affidavit.
“Luke at Jones property law absolutely did a fantastic job for my mother. He was timely, informative and clearly laid out all of the legal information in easy to understand language. I will be using this law firm in the future for any family matters or investments. I really appreciate how hard you fought for my mother Luke. Thank you!”
Simple, Uncontested Probate or Estate Admin
- Estimate: $2,500 – $6,000
- Total cost depends on the size and complexity of the estate
- An “uncontested” probate means one where all heirs and parties are cooperative and there are no disputed matters
Complex or Large Uncontested Probate
- Estimate: $5,000 – $15,000
- Fees may increase if the estate is particularly large or complex
- Schedule a free intro call to get a better idea of what costs might be incurred for the estate in question.
Contested Estate or Probate Litigation
- Estimate: $5,000 – $50,000
- If the estate or probate becomes contested or opposed, total costs will reflect the cost of general civil litigation (highly variable)
- An attorney can give you a better idea of what to expect for your specific case
Wondering if you really need to file a probate?
For a full list of possible title solutions, see our Title Services Page.