Not every house has to go into probate, but the legal procedure is sometimes required to establish the ownership of a property after someone has died. Probate applies to all assets someone leaves behind after passing.
A probate attorney with knowledge of state law is essential because of the fact that the rules can vary depending on where you are based. The process can get complicated and can also be distressing at a difficult time.
The Beginning of the Probate Process
The law in most states says that whoever has the deceased’s will has to file it as soon as they can within a probate court. This is when the petition to start probate happens, and you might need to file the death certificate.
A probate judge has to check that the will is valid, which sometimes needs a court hearing.
Analysis of the Will
Initial hearings give those an opportunity to object to the will for a number of reasons. It is important that there is a really close analysis of the will. If there is a newer will then this might invalidate the previous. Similarly, if the will has not been properly drafted then there is a chance that it might not be legally binding.
Courts need witnesses and there might be a reliance on witnesses. Will need affidavits, which rely on witnesses to have signed a document to say the will has been signed and witnessed, which is what the court uses as a part of its analysis.
Finding the Executor
The judge appoints the will’s executor. Depending on where you are based, this might be called the administrator of the will. They are responsible for overseeing the whole process and what happens to the deceased’s estate.
In the will, a decedent might have left their preference for an executor. This might be a spouse or one of their children, but they do not have to accept the responsibility. Nobody can be forced to be an executor. If they don’t want to serve in this way the court can appoint an executor.
The executor receives the legal documentation that lets them take on transactions for the deceased. These are often called “letters of authority”.
Other Assets of the Decedent
A house probably isn’t the only asset that has to go through the probate process. The executor needs to take on all of the decedent’s property and work out how to protect them throughout the process and ensure they end up with the rightful parties. Some assets might not be immediately clear.
Executors might even have to go on the lookout for other assets that are not named in the will. Things like insurance policies can help them to work out if there are assets they didn’t declare in their will or to family members.
Real estate becomes the executor’s responsibility during the probate process, and they have to ensure that all of the outgoing costs such as mortgage payments and taxes get paid.
Other assets that aren’t real estate may actually fall under the ownership of the executor while they go through probate. If someone has valuable items then the executor can keep these in safe places. They might also have to take statements and details for bank accounts.
Notifying the Creditors
The creditors who are owed money by the deceased need to be notified. They often only have a limited time that they can claim money against the estate, but this is yet another thing that can depend on what state you are in.
A lot of states make it legally required for the executor to put out a notice of death, usually in a local newspaper. This is a way to notify creditors that they can’t otherwise trace.
Executors have to work out if a claim to the money is valid or not. This can sometimes get messy. Probate judges might have to step in to decide whether or not there is a strong legal case for the money to be paid or if it is not required. It is not unheard of for fake claims to be put in place.
If there are valid claims from creditors then this is another thing for an executor to use the money for. Estate funds can be used to pay off bills. This is much more simple if there are cash assets. If all the money is tied up in property then settling the debts can be difficult. This is one of many reasons why houses in probate end up getting sold, to divide the money among numerous parties who have a claim to some of the property’s value.
Finalization and Estate Distribution
When the required steps have taken place and creditors paid then the executor may ask the court for permission to distribute the assets.
It can sometimes get complex. Most courts request a complete accounting of all of the financial transactions throughout the probate process as a legal proceeding. On top of this, if a house needs to be distributed then it might be that it has to be sold, in order to split the house up fairly. If you are entitled to 40% of its value under a will then a cash settlement might be required, and selling the house is what is needed for this.
Some states don’t need the accounting requirement, but this usually means the beneficiaries have to sign a waiver.
As we’ve already stated, the process can vary so much from one state to another, so it is important to get professional help so that you can make the process as pain-free as possible. Unfortunately, probate usually takes some time. This is especially true when real estate is involved, as it might still have a mortgage, or it might need to be sold to divide its value.
It is important that everything is carried out correctly so that assets are fairly distributed and no further legal action is required, so the executor and probate courts both play really key roles in getting the process carried out fairly and effectively.