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How Does Probate Work?

How Does Probate Work?

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How Does Probate Work?

When a loved one dies, those left behind have to handle the necessary formalities to settle the estate of the deceased, which usually includes probate. Probate is the process of administering and distributing the assets of the decedent. If your loved one made an estate plan during their lifetime, probate could be a relatively quick process. However, if there is no will or the beneficiaries are disputing their share of the inheritance, probate can get convoluted, problematic, and lengthy.

If your loved one recently passed away and you are wondering, “How does probate work?” or you are facing disputes over an inheritance, Morgan & Morgan can help. Our experienced probate attorneys can be by your side and help you handle any inheritance issues. Contact us now for free legal advice.

What Is Probate?

Probate is the process of distributing a deceased individual’s assets to the legal heirs and is a necessary part of settling an estate. Probate can only be avoided in certain circumstances, depending on state laws. Generally, a probate court oversees the proceedings and appoints an executor or representative of the estate. This individual will be responsible for locating and administering assets, paying off any debts, and distributing assets to the heirs. 

It is important to note that probate laws vary from one state to another. In some states, a full probate process is not necessary if the estate’s value is below a certain threshold. 

Dealing with complicated legal issues when a loved one passes away can feel overwhelming. However, Morgan & Morgan can be here for you if you need advice and assistance from a probate attorney.

The Probate Process

While probate laws and processes can vary slightly, depending on where you live, the general steps in the probate process are:  

  1. Filing a Petition

The first step in probate is filing the will with the probate court and filing a petition for appointing an executor who will act on behalf of the decedent’s estate. Once the petition has been filed, all beneficiaries will receive notice. Heirs and beneficiaries could now challenge the will or object to the petition. In the event of no legal will being available, a petition for the administration of the estate should be filed and all legal heirs informed. 

  1. Identifying the Decedent’s Assets and Debts

The appointed executor now has the task of identifying and taking control of the estate's assets, which can include:

  • Real estate
  • Investments
  • Bank accounts
  • Vehicles
  • Life insurance
  • Valuables and other personal property

It is important to note that trusts, for example, a living trust, are not subject to probate. 

The executor will also identify the debts of the decedent and inform all known creditors of the death and probate proceedings. Creditors generally have a timeframe available in which they can file claims for any money owed to them. 

  1. Paying the Estate’s Debts

The executor is responsible for paying all valid debts of the estate, which can include:

  • Medical bills of the decedent
  • Mortgages
  • Utility bills
  • Credit cards
  • Funeral and burial expenses

Additionally, the executor must file a final tax return for the estate and pay any taxes due. There is not enough money available to settle all debts after an individual passes away in some cases. The executor or representative of the estate then sells assets to pay outstanding bills and debts. 

  1. Distributing Assets

After payment of all bills and debts, the executor will begin to distribute the estate’s remaining assets. If there is a will, the assets will be distributed according to the deceased’s wishes. If there is no valid will, state law decides how the assets will be distributed. 

Once probate has concluded, the court receives the final accounts of an estate, detailing the payment of debts and distribution of assets. Probate can be unpopular as the entire process, depending on the complexity of the estate, can take up to a year or even longer.

Is Probate Avoidable?

Probate can be a lengthy and costly process. Therefore, heirs often look for ways to avoid probate. Depending on state law and the decedent’s circumstances, it may be possible to avoid probate. For example, estates with a low value can be settled without probate in some states. 

Trusts can also be used to avoid probate. However, living trusts have to be set up during an individual’s lifetime, which is why timely estate planning can be crucial. It is also important to note that any property you give away during your lifetime will not be part of the probate process. 

Common Probate Problems and Complications

Ideally, the decedent’s will should detail how the estate will be distributed. However, conflicts over the inheritance, whether between heirs or creditors, can be commonplace. Knowing how probate works and hiring a probate attorney can be crucial for protecting your rights in the event of any legal disputes. The probate process can get complicated if:

  • There is no valid will, or there are several wills
  • Creditors are making unsubstantiated claims
  • Disinherited individuals are disputing the will
  • Businesses have to be sold or managed as part of the estate
  • Beneficiaries and heirs cannot be contacted or located
  • There are disputes over the value of the estate

How a Probate Attorney Can Help

A probate attorney can help with many aspects of the probate process. Seeking legal advice when involved in a probate proceeding can be essential, whether you are an heir or a creditor. A probate attorney can help with all essential probate tasks such as:

  • Filing petitions in probate court 
  • Locate, inventory, and value estate assets
  • Handle estate tax and income tax returns
  • Ensure heirs and beneficiaries receive notice
  • Oversee the distribution of assets to the beneficiaries

Disputes and Estate Litigation

Working with an attorney during the probate process is recommended. However, having a seasoned lawyer by your side when disputes arise can be crucial. Legal disputes that can include: 

Undue Influence

Undue influence describes coercing or influencing a person into making or changing a will. For example, a beneficiary could influence a vulnerable senior to change the will to benefit them. A will could be declared invalid if you can prove that the testator (the person making the will) was unduly influenced. 

Elder Abuse

Elder financial abuse is, unfortunately, common. According to the National Council on Aging (NCOA), victims’ annual financial losses could be at least $36.5 billion. Someone with the power of attorney or guardianship over a vulnerable senior could be financially exploiting the individual to the disadvantage of the estate beneficiaries. 

Improper Will Execution

Wills can be contested if they were incorrectly signed or witnessed. A will could also be legally invalid if it contains mistakes or was generally improperly drafted. 

Breach of Fiduciary Duty

The executor or personal representative of an estate must act responsibly and in the beneficiaries best interests. If an executor acts fraudulently, charges excessive administration expenses, or breaches their fiduciary duty in another way, they could be ordered to pay damages.

Abuse of Power of Attorney

Having power of attorney allows an individual to act on another’s behalf in legal matters and other affairs. However, a person could abuse their power of attorney to enrich themselves to the disadvantage of the estate and heirs. 

Estate Planning Malpractice

Estate planning malpractice can arise if an attorney makes crucial mistakes and oversights during estate planning for a client. Attorney errors could result in an invalid will or improperly administered trust fund. 

There can be many other instances of inheritance disputes. In some cases, heirs feel unfairly left out of the will or believe the wishes of the decedent were not respected. However, to have a case, a claimant generally has to prove wrongdoing, such as breach of fiduciary duty, undue influence, or elder abuse. If you think you have a case, seeking legal advice as soon as possible can help you clarify your options. Probate litigation could potentially result in an amended will or a compensation award.


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How Does Probate Work - FAQs

  • Do I Need an Attorney for Probate?

    You are not required, by law, to work with an attorney for probate. However, navigating through the process can be tricky and requires some knowledge of state law and probate procedures. Especially with a large estate, having a lawyer by your side can provide peace of mind and legal protection. You could particularly benefit from the help of an experienced attorney when:

    • There is no will
    • There are doubts about the validity of the will
    • The estate is bankrupt
    • There are legal disputes from individuals left out of the will
    • The estate includes foreign property or other foreign assets
    • There are creditor disputes
    • The estate involves one or several businesses
  • Can I Contest a Will?

    You could potentially contest a will if:

    • The will was improperly executed
    • The testator lacked the legal and mental capacity to make a valid will
    • There was undue influence of the testator
    • There is evidence of fraud or forgery

    Our attorneys could help assess your options if you are considering contesting a will.


  • When Can I Expect to Receive My Inheritance?

    It can be challenging to estimate when you will receive your inheritance. Probate can take from a few weeks to a year or more, depending on the size and complexity of the estate. The speed with which you could receive your inheritance can also depend on your county court and the attorney handling probate.

    If the estate is relatively small, you may be able to expedite the procedure in some states. However, when you receive your inheritance will also depend on whether all beneficiaries agree or whether there are any legal disputes. For example, if the will is contested, it can take a year or much longer until you receive your due.

  • What Should I Do if My Loved One Did Not Leave a Will?

    Sometimes, the unforeseen happens, and an individual passes away without a will. Dying without a will is also called dying “intestate”. When a loved one dies intestate, close family members may be worried about what will happen to the deceased’s assets, especially if they depend on the income and support of the individual. While dying intestate means assets will be distributed according to state law, it does not mean that the state receives the assets.

  • How Does Probate Work Without a Will?

    Probate without a will follows the same principles as with a will, except that state law determines who inherits. Generally, this means that the closest surviving family members will receive the decedent’s assets, including spouses, civil partners, and children. Parents and siblings could also qualify. 

    However, if there is no will, consider seeking legal advice from a probate attorney. Dying intestate can make for complicated probate, especially when there are ex-spouses and children from previous marriages. An attorney can protect your rights and ensure you receive what you are entitled to.

  • Do I Have to Go to Court With Probate?

    If you have an attorney handling the probate process, you generally do not have to attend court. However, if you are handling probate on your own, then you may be required to attend probate court. Unless there are legal disputes, most probate matters can be handled via phone, mail, and email.

  • Our Probate Attorneys Can Help

    We understand that you have a lot on your plate when a loved one passes away. However, you do not have to handle a complicated probate process on your own. During this sad and uncertain time, Morgan & Morgan can be there for you and protect your inheritance rights.

    Our compassionate attorneys handle will and estate disputes on a contingency basis, which means you pay nothing unless we resolve a dispute in your favor and you receive what you deserve. Contact us today for free advice regarding your specific situation.

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Last updated on Nov 16, 2022

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