Legal and financial issues arising after the death of a loved one are often overwhelming. In order to assist you during this difficult time, I have compiled a list of frequently asked questions concerning the probate process.
What is probate? Probate is the legal process that takes place after someone dies to transfer assets owned by a decedent to their beneficiaries under a will or state law. It is the court-supervised process by which legal title to property is transferred from the decedent's estate to his or her beneficiaries. In most states, there are simpler processes available for smaller estates. For example, in Oregon a small estate affidavit can be filed if the decedent's real estate is worth no more than $200,000 and if other assets are worth no more than $75,000. There are other situations where a probate may be required or recommended, even if the assets do not exceed these limits, for example when the heirs are minor children or there is a problem with the form of the will or the circumstances under which it was signed.
What is involved? Typically if someone dies with a valid will, probate involves: Proving that a will is valid; Appointing a legal representative; Taking inventory and appraising the decedent's property; Paying debts and taxes; and Distributing property according to the terms of the will. Probate is commenced by filing a petition with the court. The petition includes a copy of the will if there is one, information about the person who has died, names and addresses of family members people who will receive assets, and information about the personal representative. Additional steps include filing an inventory, notifying beneficiaries and family members about the probate, searching for creditors, and managing estate assets.
What if my loved one did not have a will? If your loved one dies without a valid will, in order to properly administer the decedent's assets, the estate will still require probate if it exceeds the statutory limits, With a valid will, after payment of debts, taxes and costs of administration, the estate is distributed in accordance with the instructions provided by the decedent in their will. Without a valid will, the estate is distributed to beneficiaries in accordance with the rules established by state law. When there is no will, state law also determines who may be appointed as the legal representative.
My loved one named me as the legal representative. What happens now? You should consult with an attorney as soon as possible. The legal representative named in a will is not obligated to serve and may choose to decline the appointment or resign at any time. However, if you choose to pursue the role, a lawyer can help you ascertain if a probate is necessary. If you determine a probate is either necessary or desirable based on all the circumstances, a lawyer can help you file the paperwork to open the probate and obtain court approval for your appointment as legal representative.
Does all property go through probate when a person dies? Not all property goes through probate when someone passes away. "Probate assets" are property subject to the authority of the probate court. "Non probate assets" are distributed outside the probate process and are part of a person's non-probate estate. Probate assets are generally those that are in the individual name of deceased. Probate assets can include vehicles, household goods and furnishings, individual bank accounts, real estate, business interests and personal collectibles. Non-probate assets are those which pass by beneficiary designation or form of ownership under a written instrument other than a will. For example, jointly owned property that provides for rights of survivorship or funds similarly held in a joint survivorship account as well as proceeds of life insurance, retirement accounts, and annuities can pass to the surviving joint owner or the named beneficiaries without the necessity of probate. Assets titled in the name of a trust pass according to the terms of the trust and not in probate, and community property assets often pass to a spouse by operation of law. Your lawyer can assist you in determining which assets are subject to probate.
How long does probate take? In Oregon, probate takes at least four to six months and can take significantly longer if the estate is complex or needs to sell property before concluding. Even though the probate process takes at least several months to complete, the legal representative can manage the estate and sell property and pay needed bills immediately after appointment. If needed, distributions can be made from the probate to take care of the decedent's spouse or dependents well before the probate is finished.
The value of my loved one's probate assets are below the amounts required for probate. Do I need to do anything? Even if the value of the property is below the amount required for probate, something should be done to transfer assets that normally would be probated. There are several easier alternatives available. For example, most states have a small estate process, which is simpler than normal probate. A statutory affidavit can be used for some bank accounts. Also, many vehicles can be retitled using an affidavit procedure with the Department of Motor Vehicles. Even if all the assets of the estate pass outside of probate, there may be state and/or federal tax issues. A lawyer or an accountant can assist you in determining and minimizing tax obligations associated with the decedent's estate.
Can I file for probate without an attorney? Yes. Many county courts have personnel who will provide sample forms or basic instruction. However, in most cases, it can be very frustrating and difficult to attempt to interact with the court and as a legal representative without the assistance of a lawyer. Additionally, the legal representative has a fiduciary duty with respect to the assets of the decedent, and can be held personally liable for errors, omissions and negligent actions no matter how well intended. Also, even in a simple and uncontested probate, there are a number of legally required notices and accounting with formal filing deadlines and formatting requirements. By working with an attorney, the legal representative is best positioned to fulfill his or her duty to the creditors and beneficiaries, and protect himself from financial liability. At many law firms, experienced probate paralegals are supervised by attorneys with experience probating both large and small estates, simple and complex. When properly supervised, a probate paralegal can efficiently prepare legal filings for you, ensuring compliance with the law.
I am not the legal representative of the estate, but I am an heir/beneficiary of the estate. Should I consult with an attorney? One purpose of the probate process is to protect the rights of beneficiaries of an estate and provide a forum for objections. If you believe your rights need protection, a lawyer is best positioned to assist you in evaluating your claim and enforcing your rights. A lawyer also can advise you on potential issues that may affect you as a beneficiary, such as disclaiming your inheritance in favor of your heirs or how to manage your inheritance with an eye towards long-term goals and tax planning needs. If you have inherited money, a lawyer can also assist you with updating or creating your own estate plan.
What happens if my loved one owned property in more than one state? If the decedent owned property in more than one state there is an additional layer of complexity. Often, this requires two or more proceedings, one in each state.
My loved one had a trust. Do we still need a probate? If all of the decedent's assets were owned by the trust, then the decedent's assets will be held or distributed in accordance with the terms of the trust. A probate may not be necessary. If you are named trustee or successor trustee under the trust, many of the same rules (other than court filings) that apply to a legal representative appointed under a will also apply to a trustee. A trustee also has a fiduciary duty and can be personally liable for his or her acts or omissions. You should still confer with an attorney and an accountant to ensure that you have properly identified all your loved ones assets, debts and tax obligations. A probate may be necessary if there are assets outside of the trust.
What should I do if I have questions? Contact a skilled probate lawyer.