Probate Questions | Estate Settlement Questions


Frequently Asked Probate Questions

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Click on blue probate question to go directly to answer, back arrow to return to list of questions.

  1. What is probate?

  2. Is probate necessary?

  3. Does all property go through probate when a person dies?

  4. Do life insurance or retirement benefits need to go through probate?

  5. Do living trusts go through probate?

  6. How much does probate cost?

  7. How long does probate take? (see time line)

  8. Where will the probate hearing be?

  9. Who is in charge of the probate process?

  10. Who can be the personal representative?

  11. Who is not allowed to be the personal representative?

  12. Does the Court supervise the personal representative?

  13. What does the personal representative do?

  14. If I am named as executor in a Will, do I have to serve?

  15. If I serve as executor, will I get paid?

  16. What happens if the personal representative fails to perform his or her duty? (see article)

  17. Do I have to use a lawyer for the probate process?

  18. What if someone objects to the Will?

  19. Who can contest a Will?

  20. When can a Will be contested?

  21. What if there is no Will? (see locating the will)

  22. What happens if we cannot find a Will?

  23. What if the decedent owned land in more than one state?

  24. How do creditors get paid?

  25. If I am a beneficiary and the estate does not have enough money, do I have to pay creditors out of my own pocket?

  26. How are taxes handled in probate?

  27. Am I responsible for paying the rest of my deceased spouse’s bill?

  28. How can I find out if there was a Will?

  29. What if someone dies and I have the Will in my possession?

  30. As an heir, how do I stay informed of what is happening in the probate case?

Probate question not here : Send Us your probate or estate question

1. Probate question: What is probate?

Probate is when the court supervises the processes that transfer legal title of property from the estate of the person who has died (the "decedent") to his or her beneficiaries.

Usually, you have to fill out court forms and appear in court to:

Prove to the Court that the Will is valid (this is usually routine),

    • Appoint a legal representative with authority to act on behalf of the decedent,

    • Identify and inventory the decedent's property, and have that property appraised,

    • Pay debts and taxes, and

    • Distribute the remaining property according to the terms of the Will or to the decedent's heirs.

Go to steps in the Estate Settlement / probate process

2. Probate question: Is probate necessary?

If the person who died did not have any property to transfer, probate is usually not necessary. The deceased person’s survivors may decide to open a probate if there are debts owed or if there is a need to set a deadline for creditors to file claims.

When there is property to transfer the probate process also provides for the distribution of the estate's property to the decedent's heirs. 

3. Probate question: Does all property go through probate when a person dies?

No. The term "probate estate"" refers to any property subject to the authority of the probate court. Assets distributed outside the probate process are part of a person's “non-probate estate.” (see transfer of property)
 
There is also an easy way to transfer property to a surviving spouse, property held in Joint Tenancy and life insurance and retirement benefits.

4. Probate question: Does life insurance or retirement benefits need to go through probate?

No. The benefits can be paid directly to a named beneficiary. Money from IRAs, Keoghs, and 401(k) accounts transfer automatically to the persons named as beneficiaries. Bank accounts that are set up as pay-on-death accounts (PODs) or "in trust for" accounts (a "Totten Trust") with a named beneficiary also pass to the beneficiary without probate.

Need to order certified copies of death certificates (all states free link)

5. Probate question: Do living trusts go through probate?

No. When a living trust holds title to some of the decedent's property, that property also passes to the beneficiaries without probate.

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