What is Probate?

Sep 11, 2019Estate Planning

What is Probate?

Essentially it is a legal process that takes place after someone dies.

It includes several steps:

  1. proving in court that a deceased person’s will is valid (usually this routine matter)
  2.  identifying and inventorying the deceased person’s property
  3. having the property appraised
  4. paying debts and taxes, and
  5. distributing the remaining property as the will (or state law, if there’s no will) directs.

Typically, uncontested probate in Idaho involves only filing paperwork with the court.

 

How does the probate process work?

 

Probate usually works like this:

After death, the person named in the decedent’s will, also known as the personal representative or, if the person dies without a will, the person appointed by a judge, will file documents in the local probate court to open probate. These documents prove the validity of the decedent’s will and presents the court with lists of the estate’s property, debts, and who is to inherit the decedent’s assets. Shortly thereafter, relatives and creditors are officially notified of the decedent’s death.

 

Who is responsible for handling probate?

 

In most circumstances, the Personal Representative named in the will takes this job. If there isn’t a will , or the will fails to name a Personal Representative, the probate court names someone (called an administrator) to handle the process. The Personal Representative must find, secure, and manage the decedent’s assets during the probate process, which commonly takes a few months to a year. Depending on the contents of the decedent’s will, and on the amount of the decedent’s debts, the Personal Representative may have sell the decedent’s real property, securities, or other personal property.

For example, if a will makes a number of cash bequests but the estate consists mostly of valuable artwork, the art collection might have to be appraised and sold to produce cash. Or, if the estate has a lot of outstanding debts, the personal representative might have to sell some of the real property to pay them.

Typically, immediate family members may ask the court to release short-term support funds while the probate proceedings continue. Eventually, the court will grant the Personal Representative permission to pay the decedent’s debts and taxes and divide the rest among the people or organizations named in the Decedent’s will. Finally, any real or personal property not sold to satisfy debts will be transferred to its new owners.

 

Does all property have to go through probate when a person dies?

 

No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In Idaho, estates worth up to $100,000 of property is not typically subject to probate. In this case, a simple transfer procedure for any property left to a surviving spouse may occur. Additionally, property that passes outside or not subject to probate include: joint tenancy property, accounts with a designated beneficiary and a living trust.

 

When is probate really necessary?

Typically an estate would need to be probated when:

  1. If the decedent owned any real property in their name solely, without any other joint owners or a payable on death designation. In most cases the property will need to be probated to get it out of the decedent’s name and into the names of the decedent’s beneficiaries.
  2. Assets Owned as a Tenant in Common. If the decedent owned any real property in their individual name as a tenant in common with others, then in most cases the decedent’s tenant in common share will need to be probated to get it out of the decedent’s name and into the names of the decedent’s beneficiaries
  3. Predeceased Beneficiaries or No Designated Beneficiaries. If the decedent owned a payable on death or similar type of account; a Health Savings or Medical Savings Account; a life insurance policy; a retirement account, including an IRA or and 401(k); or an annuity, and all of the named beneficiaries of the account or policy have predeceased the decedent, or if the decedent didn’t name any beneficiaries at all, then in most cases the account or policy will need to be probated in order to get it into the names of the decedent’s beneficiaries.
  4. The Decedent Didn’t Have a Valid Last Will and Testament. If the decedent doesn’t have a valid last will and testament at the time of his or her death and one or more of the situations described above apply to the decedent’s assets, then in most cases the assets will need to be probated in order to get them out of the decedent’s name and into the names of the decedent’s heirs at law.
  5. The Decedent Has a Valid Last Will and Testament. Even if the decedent has a valid last will and testament at the time of their death, if one or more of the situations described above apply to the decedent’s assets, then in most cases the assets will need to be probated in order to get them out of the decedent’s name and into the names of the decedent’s beneficiaries named in the will.

Please Note: The “small estate” procedure mentioned above only applies to an estate as long as the value of the decedent’s property is less than the applicable state’s small estate cut off amount.

In short, a properly drafted will, updated regularly to account for life changes, organized records of debts, personal property and other assets simplifies the probate process. The easier it is for the personal representative to account for the estate after the decedent’s death, the easier the probate process.

 

If you have further questions, please schedule a free consultation with our estate planning attorneys. Hayden Law is available to discuss your options and answer your questions.

Bryce Myrvang

Bryce Myrvang

Attorney

Questions about estate planning? Schedule a consultation so I can help you learn more.

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