Probate is the legal process that transfers property from the estate of the decedent to the heirs. During the probate process, the executor of the estate appears before the Register of Wills, inventories and values the estate assets, pays all the estate bills and distributes the estate pursuant to the terms of the will. The executor also files and pays the inheritance taxes and later, an accounting or a family settlement agreement. Probate can be a relatively simple process with good planning and an experienced estate attorney to guide you through the process.
Question #1 What is probate?
Probate is the legal process where your named executor goes before a court to have the will prove as valid and to be given the right to administer estate property and prove the will. Typically, probate involves paperwork and if the will is challenged, a court appearance by lawyers. The lawyers and court fees are usually paid from estate property, just like funeral expenses, costs of administration and the settling of the decedent's debts.
If there is a will, the document will name an executor who will administer the estate. If a person dies without a will, known as being "intestate, " the heirs, determined by statute, can nominate a person to act as an administrator. If the heirs do not agree on an administrator, one will be appointed by the court.
Question #2 Why is probate necessary?
The primary function of probate is transferring title of the decedent's property to their heirs and/or beneficiaries, paying the debts of the decedent and paying the inheritance taxes. If there is no property to transfer, there is usually no need for probate.
Question #3 What is involved in administering an estate?
Your executor has many duties, including:
• Identifying and cataloging all property owned by the decedent
• Appraising the property and paying all debts and taxes
• Proving that the will is valid and legal
• Distributing the property to the heirs as the will instructs
Question #4 How long does estate administration take?
The duration varies with the size and complexity of the estate, the difficulty in locating the beneficiaries who would take under the will, if there is one, or under the laws of the state if there is no will. The Commonwealth of Pennsylvania requires the inheritance taxes to be paid within nine months of the date of death, but a prompter filing will result in a discount.
If there is a will contest, or anyone objects to any actions of the executor or estate trustee, the process can take a long time. Some matters have taken decades to resolve, but a year may be closer to the norm.
Question #5 What is the probate process of an uncontested will?
Typically the person named as the decedent’s executor goes to a lawyer experienced in probate matters who then prepares a petition for probate for the Register of Wills and takes it, along with the original will, and files it with the probate court. An executor is appointed who then carries out the wishes set forth in the will.
Question #6 Should I plan to avoid probate?
Probate is unavoidable if you die with property titled in your name, such as real estate and automobiles. Nonetheless, with estate planning, it is possible to avoid probate in some circumstances. Contact a reputable estate planning attorney to discuss your situation.
The sites listed here all provide some form of survivor benefits to the estates of qualifying individuals following a death, or assistance with the accurate and timely completion of the necessary forms and documents to maximize government and corporate benefits after the death of a loved one, as well as help in returning all identification documents, thus limiting the opportunity for identity theft.
Disabled Veterans Nation Foundation - www.dvnf.org
US Department of Veterans Affairs - www.benefits.va.gov
The ‘Probate’ section was kindly provided by Faith Lucchesi of De Boef Lucchesi & Associates.