Caregiver’s FAQ: What is probate court?

After a loved one’s death, the last thing you want to worry about is all the legal stuff. Yet, this tangle of legal and financial processes can be tricky to navigate – especially if you’re unprepared. What exactly is probate court? Let’s take a closer look at what probate court is and why writing a clear will is essential.

What is probate court?

Simply said, probate court is the legal processing of your estate after you pass away. It’s the formality behind proving the validity of wills, executing will instructions and paying any debts/taxes that remain. 

Probate is especially important when the deceased didn’t leave a will or instructions about the estate, or there are familial disputes about the validity of a certain will. Any disputes regarding the estate will be settled during probate.

However, even estates that are clear and straightforward will go through probate to ensure that the legal process remains intact. 

What happens in probate court?

The court goes through a series of steps to execute a will. You can expect the court to take the following actions:

• Presenting the death certificate.
• Verifying the will.
• Appointing the will executor, who manages assets during probate proceedings.
• Notifying beneficiaries and creditors.
• Identifying and inventorying the value of assets/property.
• Paying debts/taxes.
• Distributing assets/property according to will provisions.
• Closing probate paperwork.

This process typically takes between 6-9 months. If complications come up, it can take up to a year. Overall, this process depends on the deceased’s will. 

What makes probate court complicated?

Probate procedures can become a lengthy process in the following situations:

• A will isn’t clear
• A will was made by a sham website or attorney
• A will can’t be proved valid
• An estate owes a great deal of debt
• Disputes between family members occur

In these cases, you may find this process more involved than usual. In particular, disputes can prolong the proceedings. If you anticipate disputes, it’s a good idea to get an attorney.

Is probate court expensive?

During the course of probate, you should expect to pay attorney fees, executor fees, court filing fees and any notice fees. The size of the estate, as well as the state’s specific fees, will also add to the expenses. As you can see, this process can become expensive. You can get a more in-depth look at probate court expenses here.

How can I prepare for probate court?

At the first probate hearing, the court will formally appoint the executor and issue the respective legal documents. At this point, if you have any relevant documentation (death certificate, will, etc.) you should bring it with. 

How can I avoid probate court complications?

There are a few ways to avoid complications, all of which require prior planning. End-of-life planning is essential for families to avoid delays and disputes. Some prior actions to take include:

• Have a clearly written will that specifies inheritance, guardianships of kids/pets, will executor, etc.
• Create a trust with your assets to easily distribute to beneficiaries. Trusts bypass typical probate procedures, which means they aren’t under dispute.
• Give assets away while you’re alive, which avoids having everything tied to the will.
• Designate accounts with payable on death (POD) and designate property titles jointly. Transferring title rights beforehand will save you a headache.
• Meet with an attorney before death to have everything in order and avoid fees in the future.

As you can see, end-of-life planning is essential to make these processes go smoothly. If you’re not sure how to get started with end-of-life planning, check out our guide here.

Final takeaway

Probate court doesn’t have to be scary. With this overview, you’ll be better prepared to understand the probate procedures and how to make it go as seamless as possible. 

If you’re planning ahead, you can also avoid probate court by having all your paperwork in order and setting up a will alternative such as a trust. 

Want more legal resources? Check out our list of free legal services for seniors on MyCaringPlan.

Sources:

1. How Caregivers Can Avoid Probate Court, AARP, www.aarp.org
2. The Basics of Probate, National Caregivers Library, www.caregiverslibrary.org
3. Conservatorship and Guardianship, Family Caregiver Alliance, www.caregiver.org