How Probates Typically Happen
The death of a loved one is a difficult experience for anyone to navigate. It’s also a process that can become significantly more arduous and painful in the event of a family legal dispute. Without clear consensus regarding the wishes of the deceased, surviving family members may be compelled to deal with thorny legal matters — a situation that can strain relationships even under the best of circumstances. This doesn’t have to be though.
Should you find yourself in a similar scenario, it’s imperative that you understand the basics of probate law and that you seek experienced counsel to guide you through the process.
Probate Law Explained
If you do not have all your assets in a trust, you must start a probate. To put it simply, probate is the legal process by which estates are settled. A probate court oversees a variety of tasks, including creating a comprehensive estate inventory; determining the validity or invalidity of wills; identifying possible heirs; selecting estate executors and administrators; making financial arrangements (including the settlement of taxes and/or debts) and distributing assets to heirs.
During the process, the court will either confirm the executor selected by the deceased provided that there is no challenge to that fiduciary or in the absence of a will or select one person to assume control of the estate, with the goal of satisfying outstanding debts and fairly distributing remaining assets to beneficiaries.
Should the deceased not have a will (this is called dying “intestate”), the prevailing laws of the state determine who inherits any assets. This typically follows the next of kin line: Spouses, children, parents, siblings, cousins etc.
Should someone die with a will, the probate court may be asked to rule on the will’s validity by an heir. In many states, surviving spouses are granted a certain share of any of the estate’s assets even if a valid will is in place. This share varies from state to state.
The executor or court-appointed administrator is often required to assume a wide variety of tasks (opening bank accounts, filing court documents, negotiating with creditors, paying taxes etc.). Yet because many executors or administrators have little to no experience in such areas, hiring a probate attorney to assist is common practice. It usually takes anywhere from six months to several years to complete the probate process, depending on the complexity of the case and whether there are any challenges.
It should be noted that while some jurisdictions require probate proceedings on certain estates, it is often a process that can be avoided by mutual agreement among heirs. Probate proceedings for contested estates can be expensive and time-consuming. Yet if you believe you are not being treated fairly following the death of a loved one, can’t reach consensus with other heirs, or find yourself operating in the absence of a will, probate may be your best option. It provides neutral third-party appraisal and helps ensure fair settlement of the estate.
Key Probate Differences
Generally speaking, there are three broad categories of probate proceedings: Small estate affidavit, Informal Probate, and Formal Probate.
A Small Estate Affidavit
A Small Estate Affidavit is used when a probate is not required to resolve a dispute for a small estate. It allows the collection of personal property (such as money in a bank account). In Utah, a small estate affidavit is not filed with the courts. Instead, the decedent's successor fills out the form, signs it before a notary, and gives it to any third parties, such as the bank.
A small estate affidavit may be used if:
· the entire value of the estate is under $100,000,
· there is no real property,
· at least 30 days have passed since the death, and
· no application for appointment of personal representative has been filed.
If there is any question about who the decedent's successor is, then a third party might ask for the court appointment of a personal representative before distributing the asset. Utah Code 75-3-1201.
Informal probate is the process for asking the court to appoint a personal representative for a decedent's estate without a hearing. This process is usually used when all interested parties agree about who should be appointed personal representative and how the estate should be distributed.
Informal probate proceedings are typically associated with estates featuring minimal rancor or disputes among heirs and creditors. Because this process involves no actual court hearings (only submitted documents), it’s only available in cases where nobody contests the proceedings.
Formal probate is the process for asking the court to appoint a personal representative with a hearing, usually because there is no will, or there is some disagreement about who should be the personal representative or how the estate should be administered and the interested parties need the court to make decisions.
It’s also important to understand that if you have any question at all about the validity of a will or the fairness of asset distribution, you should seek legal counsel and perhaps opt for a more formal probate process. While it may take longer, the process is designed to protect the rights of all heirs.
Choosing the Right Probate Attorney
Probate cases are among the most complex and time-consuming in the legal field. The laws governing administration and distribution of estates are often deeply complicated and can vary widely by jurisdiction. As such, it can be almost impossible for a layperson to be sure that the process is being handled equitably.
Additionally, those who have been appointed as an executor or designated as an administrator may find themselves struggling to keep pace with the extensive requirements of the job. Balancing one’s normal life with a whole range of new legal responsibilities — all occurring during a time of great stress and sadness — can quickly become overwhelming. Seeking help from an experienced probate attorney can help relieve this burden.
If you’re in a similar situation — or you’re an heir who feels you’re being treated unfairly — please don’t hesitate to seek legal assistance. Doing so will help protect your rights and ensure that your loved one’s wishes are being duly followed.