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What Is Probate?

Will ProbateProbate is the legal process that occurs after a person dies to determine if their will is valid (if they have one), appoint an executor or administrator of their estate, and ensure the orderly and proper administration and distribution of their estate. Typically, the executor identifies all of the deceased individual's property and assets, pays the necessary taxes, debts and costs of administration, and then distributes the remaining property and assets as determined by the will. If there is no will, property and assets will be distributed according to state law. Probate usually requires the use of an attorney to process paperwork and make any necessary appearances in court. The attorney’s fees are typically paid for by the deceased person's estate.

How Does the Process Work?

After an individual's death, the person named as executor in their will files the will with the local probate court. At that time, the named executor must also qualify before a clerk of the court and post any necessary bond and surety. If there is no executor named in a will, the court can appoint someone to act as the administrator.

The executor is responsible for proving the validity of a will, presenting the court with an inventory and accountings of all property and assets, paying all debts and taxes, and properly distributing any remaining property and assets to beneficiaries or heirs. This process may take a few months to over a year depending on certain factors. For example, if a person has debts that need to be settled, the executor may decide to sell some property to pay them.

Some states permit family members to request short-term funds for financial support during the probate process. Finally, the court will grant the executor permission to pay debts and taxes and transfer the remaining property and assets to heirs named in a will or according to state laws.

Who Handles the Probate Process?

Probate is usually handled by the executor named in a deceased person's will. If there is no will, the court will appoint someone to handle this process (called an “administrator”). Typically, a relative, beneficiary, or heir is appointed as the administrator.

When an estate is considered a “small-estate” for legal purposes formal probate is not required. In those cases family members often share the responsibilities of settling a deceased person's debts and taxes and distributing their property and assets to the appropriate heirs.

Is Probate Required?

Most states permit property and assets to be transferred without a probate procedure if assets are worth less than a certain amount. For instance, in Virginia, property may be transferred without probate if the entire estate is worth less than $50,000 cumulative value, and no single asset is worth more than $15,000.

Additionally, property that is transferred through certain other legal means, such as a living trust or beneficiary designations, do not require probate. Probate is often costly and time consuming. However, it may be avoided through certain planning methods. Which planning methods are best depends on the types of property and the values of the assets involved.

If you need help with any part of the probate process, don’t hesitate to contact the Law Offices of Richard W. Hartman III, Attorney & Counselor at Law, PLLC in Vienna.

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