Probate in Washington typically takes six months to a year. It can take much longer if there is a court fight over the will (which is rare) or if the estate has unusual assets or debts that complicate matters. Unless there is a dispute, it's mainly a matter of filing paperwork.
Probate court proceedings aren’t always necessary. Many assets can be transferred to their new owners without probate. Examples of common assets that do not need to go through probate include:
After excluding the assets that don't go through probate, if the property left in the estate is small enough (see below), probate also won't be necessary. Otherwise, probate is usually required. However, even if an estate does need to go through the probate process, Washington does offer a simplified version of probate that is available to many estates. (See "Requesting Settlement Without Intervention," below.)
If the total value of the probate estate (the assets that can’t be transferred to inheritors in another way) is small enough, probate won’t be necessary. Currently, Washington allows estates worth up to $100,000 to avoid probate. Inheritors can claim the assets with a simple sworn statement affidavit. (Wash. Rev. Code § 11.62.010 (2024).)
For more on this, see Probate Shortcuts in Washington.
If probate is necessary, the person named in the will to serve as executor goes to the superior court in the county where the deceased person lived and starts the process. The prospective executor files the will, if any, with a document called a petition for probate, which contains a request to be formally appointed as executor. The total filing fee is $240 ($200 filing fee plus a $40 surcharge. (Wash. Rev. Code § 36.18.020 (2024).)
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” The surviving spouse or registered domestic partner, if any, has first priority to be appointed as administrator. (Wash. Rev. Code § 11.28.120 (2024).)
The administrator does the same job as an executor. Both administrators and executors can also be more generally called the estate’s “personal representative.”
The probate court then issues a document called “letters testamentary” (to an executor) or “letters of administration” (to an administrator). This document is proof of the personal representative’s legal authority to collect and manage estate property.
The personal representative is entitled to collect a fee for the work performed for the estate. If the will includes directions for how to calculate the fee, they must be followed. If the will doesn’t mention fees—and most don’t—the amount is based on the amount of work done and must be approved by the court. Many personal representatives who inherit money from the estate choose not to take a fee, in part because the fee is taxable income. (Wash. Rev. Code § 11.48.210 (2024).)
Under Washington probate law, any person who has the deceased person's will must turn it over either to the probate court or to the personal representative within 30 days of finding out about the death. And if the personal representative has the will, they have 40 days to turn it over to the Washington probate court. That said, it's not common to sue someone for taking too long to file the will. (Wash. Rev. Code § 11.20.010 (2024).)
In addition, if you thought there was no will but later discover a will (before the probate process is concluded), you should be able to have the will admitted to probate.
After you've started the probate process in the Washington probate court, you'll likely find it necessary or useful to take the following steps.
In many cases, the personal representative (executor or administrator) can request permission from the probate court to use a simplified probate process. This lets the personal representative administer and close the estate without any court supervision. The personal representative can sell, lease, borrow against, or distribute estate property without the court’s approval, and without giving notice to beneficiaries, heirs, or creditors.
The court shall grant a request for "nonintervention administration" if the estate is solvent (has more assets than debts) and:
(Wash. Rev. Code § 11.68.011 (2024).)
If there’s no will, the court shall grant a request for "nonintervention administration" if the estate is solvent and:
(Wash. Rev. Code § 11.68.011 (2024).)
A fully supervised administration, by contrast, requires court supervision whenever the executor or administrator takes actions. As you might imagine, this process can be more complicated and drawn out.
In broad overview, the personal representative’s job is to:
The personal representative should keep careful records (for example, receipts, bills and bank statements) of how estate assets are handled and distributed. The personal representative should inventory estate assets and estimate their value, but in Washington the inventory doesn't have to be filed with the court unless an interested person requests it. (Wash. Rev. Code § 11.44.015 (2024).)
Usually, the personal representative opens a checking account for the estate, and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If the deceased person owned real estate in another state, the personal representative might need to conduct a second probate proceeding in that state. That’s called an ancillary probate.
In Washington, executors can choose whether or not to publish (in a local newspaper) formal notice of the probate court proceeding. If the executor does publish the notice, and also sends it to all known creditors, creditors will have just four months in which to make claims against the estate. If they don’t, their claims will be barred. Otherwise, creditors have two years from the date of death in which to bring claims. An executor who is concerned about claims coming in later usually chooses to publish notice. (Wash. Rev. Code §§ 11.40.020, 11.40.051 (2024).)
If there’s not enough money in the estate to pay all debts, the personal representative must turn to state law, which prioritizes claims. The family allowance has the highest priority, followed by probate costs, funeral costs, expenses for the last illness, and taxes. (Wash. Rev. Code § 11.42.090 (2024).)
The list goes on; you’ll need to consult it only if there isn’t enough money to pay all the bills. If that’s your situation, get legal advice before you pay anyone.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns might also be required for the estate itself.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99.9% of all estates do not owe federal estate tax.
The state of Washington imposes its own estate tax, in addition to the federal tax. For deaths during the years 2018 to 2024, the tax applies to estates worth more than $2.193 million.
The personal representative can distribute estate assets to inheritors only after debts and taxes are paid. The personal representative follows the instructions in the will, or if there is no will, turns to state “intestate succession” law to determine who inherits.
A personal representative who has paid all debts, filed the required tax returns, and distributed all the estate assets formally requests the court to close the probate case. The process is simple if the personal representative gets all the heirs and beneficiaries to sign a receipt and waiver document. If they don’t, the personal representative will have more notices to give and documents to file.
]]>Many types of assets never go through probate. Assets that can be transferred to the new owner without probate include:
To keep the above assets out of probate, it’s important to create and maintain them properly. See Nolo’s page about ways to avoid probate for information about using the above assets.
Texas has several types of probate and other estate proceedings. The type of procedure depends on several factors, including the size of the estate and whether or not the deceased person had a will.
Formal probate proceedings are likely required if the estate (the amount of property the deceased person left behind) is more than $75,000, not counting certain types of exempt property. This is true whether the deceased person had a will or not.
Formal probate proceedings in Texas can vary in the amount of oversight provided by the Texas probate court. Formal probate can be either:
Most Texas wills direct the executor to pursue independent administration, because it's quicker, simpler, and less expensive. The executor is, for the most part, able to act independently. Even if the will doesn't provide for independent administration (or there isn't a will at all), the executor or administrator can ask the court for authority to act as an independent executor—but only if all beneficiaries agree.
Independent administration means the executor:
An independent executor still must publish notice to potential creditors and file an inventory of assets with the court. The executor must collect and safeguard estate assets until it's time to transfer them to their new owners. (Tex. Est. Code §§ 402.001, 403.051 (2024).)
Although it's less common, executors can also request dependent administration, which entails greater court supervision of the probate process. Dependent administration often occurs when a person dies without a will or the will doesn’t provide for independent administration.
If the estate is going through a dependent administration, the executor or personal representative generally can’t act for the estate without obtaining a court order authorizing that particular act. (Tex. Est. Code §§ 351.051, 351.052 (2024).)
The "muniment of title" process is a relatively simple and inexpensive way to transfer estate assets when there's a will. It's essentially a probate shortcut.
Muniment can be used when:
(Tex. Est. Code § 257.001 (2024).)
To get the process started, someone files the will and a request to probate the will as a muniment of title with the probate court. If the court decides there's no need for probate administration, it admits the will into probate as a muniment (evidence) of title to the estate assets. Essentially, the will serves as the document that transfers the assets to the persons or entities named in the will to inherit them. (Tex. Est. Code §§ 257.051, 257.052, 257.101 (2024).)
The court doesn't appoint an executor or administrator. The person who requested probate as a muniment of title, however, is required to file an affidavit (sworn statement) with the court within six months, stating that the terms of the will have been carried out (or, if some terms haven't been carried out, which ones). (Tex. Est. Code § 257.103 (2024).)
In certain circumstances, people who inherit property don't have to open a probate court proceeding or use a muniment of title. If there is no will and the total value of the probate estate is $75,000 or less (excluding certain types of property), then the people who inherit the property can prepare a simple affidavit (sworn statement) to collect the property. (Tex. Est. Code § 205.001 (2024).)
Texas executors can use a simplified small estate process if the value of the property doesn't exceed what's needed to pay the family allowance (an amount paid to a surviving spouse, minor children, and "adult incapacitated" children) and certain creditors. The executor presents an accounting showing where the estate money went, and the court approves it and closes the estate. (Tex. Est. Code § 354.001 (2024).)
Similarly, if, after expenses of the funeral and last illness have been paid, the remaining assets don't exceed the amount of the family allowance, the court can issue an order of no administration. In that case, the court assigns the estate assets to the surviving spouse and minor children. (Tex. Est. Code §§ 451.001, 451.002, 451.003 (2024).)
A formal probate process in Texas usually requires taking steps such as these:
A typical timeline for a probate proceeding in Texas, from filing the application to distributing the assets, is about nine to 12 months. However, exactly how long probate takes will depend on many factors, such as the complexity of the estate and whether family conflict exists.
Learn more about Texas probate shortcuts.
For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide by Mary Randolph (Nolo).
]]>Probate in Georgia can commonly be conducted in about eight months to a year, unless there is a court fight over the will (which is quite rare) or unusual assets or creditors’ claims that complicate matters.
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
In certain circumstances, any heir (person entitled to inherit under state law, in the absence of a will) can ask the local probate court for an order stating that no probate is necessary. The court will grant the request if:
For more information, see Probate Shortcuts in Georgia.
If the deceased person named you to serve as executor (generally called a personal representative or PR in Georgia) in the will, it will be up to you to step up and take charge of settling the estate. GA. Code Ann. § 53-5-2. If probate is necessary, you will go to the court and request to be formally appointed as personal representative of the estate.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor and is also called the personal representative. The surviving spouse, if any, has first priority to be appointed as administrator (unless the couple was getting a divorce at the time of the death). GA. Code Ann. GA. Code Ann. § 53-6-20
An administrator may need to post a bond with the court; this is a kind of insurance policy that protects the estate if the administrator mismanages estate funds. GA. Code Ann. § 53-6-50
The personal representative takes an oath (GA. Code Ann. § 53-6-24) promising to act in the best interests of the estate, and the court will then issue a document called “Letters Testamentary” (if the executor was named in the will) or “Letters of Administration” (if the court appoints an administrator). This document gives the PR the duty and authority to:
The PR must keep careful records of how estate assets are handled and distributed; you may need to submit receipts, bills and bank statements to the court. The court may require certain reports about the estate, including:
Both of these reports must be sent to heirs and beneficiaries as well. An accounting won’t be required if all of the beneficiaries agree that it’s not needed or if the will states that it’s not required. GA Code Ann. §§ 53-7-67, 53-7-68, 53-7-30.
Usually, the PR will open a bank account for the estate and consolidate existing cash accounts in the estate account. Amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments) are deposited into the account, and its funds are used to pay estate expenses.
The PR has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If you need to sell some estate assets—to get cash to pay debts, or to get rid of assets that are declining in value—you may need to get prior approval from the probate court. It depends on the kind of asset and the authority granted you by the will. You’ll probably need court approval to sell real estate or business interests.
Within 60 days of starting to serve as personal representative, the PR must publish a notice of the probate proceeding in a local newspaper. This serves to let creditors know that they have three months (after publication ends) to come forward if they want to present a formal claim to the estate. Most creditors don’t make formal claims; they just send regular bills to the deceased person’s address. GA. Code Ann. § 53-7-41.
If there’s not enough money in the estate to pay all debts, the PR must turn to state law, which prioritizes claims. The family is paid first; the surviving spouse and children under 18 are entitled to a year’s support. GA. Code Ann. § 53-3-1. After that come funeral expenses, costs of probate (court filing fees, lawyers’ fees, and more), expenses of the last illness, and taxes, in that order. The list goes on; you’ll need to consult it only if the estate can’t pay all the bills. If that’s your situation, you’ll want to get legal advice before you start writing checks.
It’s also the PR’s job to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
Additionally, a federal estate tax return will be required if the taxable estate is very large—for deaths in 2024, more than $13.61 million. Less than one percent of estates are expected to have to pay federal estate tax under the current tax structure.
The PR can distribute estate assets to inheritors only after debts and taxes are paid. The PR follows the instructions in the will, or if there is no will, turns to state law to determine who inherits. Georgia law provides that the deceased person’s closest relatives inherit his or her assets. For example, if the deceased person is survived by a spouse and children, they share the estate. The PR usually prepares an accounting, showing who gets what, before distributing property. GA. Code Ann. § 53-2-1
When the PR has paid all debts, filed the required tax returns, and distributed all the estate assets, the PR files a Petition for Discharge with the court, asking to be formally relieved of his or her duties. If the court determines that the PR has performed all the duties required, the discharge will be granted. This closes the estate and releases the PR from any liability. GA. Code Ann. § 53-7-50
For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide, by Mary Randolph (Nolo).
]]>Conducting a probate in Indiana commonly takes six months to a year, depending on the situation. It can take longer if there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Only assets that the deceased person owned in his or her own name, alone, need to go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up what’s called the “probate estate.”
Here are common kinds of property that are NOT part of the probate estate:
If the probate assets are under a certain amount, Indiana provides a few alternatives to full-blown probate.
A small estate affidavit process. If the total probate estate is worth no more than $50,000 (for deaths before or on June 30, 2022) or $100,000 (for deaths after June 30, 2022), those who inherit personal property (anything but real estate) from the deceased person can prepare a simple affidavit (sworn statement) stating that they are entitled to certain assets. When the inheritor presents the affidavit and a death certificate to an institution possessing the property (a bank, for example), the institution will turn it over. (Ind. Code § 29-1-8-1).
Affidavit for real estate. You can also transfer title to real estate by filing an affidavit (known as a "passage of title affidavit," or sometimes as a "devolution affidavit") with the county recorder's office. (Ind. Code § 29-1-7-23.) The affidavit must be signed and recorded with the county recorder's office before a personal representative is appointed in the probate case, and the petition to appoint the personal representative is filed more than five months after the date of death. (Ind. Code §§ 29-1-7-15.1(b) and 29-1-7-23(f).)
A simplified probate process. Indiana also offers a simplified version of probate, known as administration without court supervision (or unsupervised administration). There are a few requirements the estate must meet. For example, the estate must be solvent (meaning it can't owe more money than it has), and the inheritors must all agree to the simplified probate. (Ind. Code Ann. § 29-1-7.5-2.) This simplified process is discussed more below.
Learn more about Indiana's probate shortcuts.
If probate seems like a lot of fuss, there are steps you can take during your lifetime to ensure that your property does not pass through probate at your death. For more details, see Avoiding Probate in Indiana.
Probate court proceedings begin when the person named in the will to serve as executor files the will and a document called a “petition for probate” with the probate court, requesting to be officially appointed as executor. (Proceedings are conducted in the county where the deceased person lived or if the deceased person wasn’t an Indiana resident, where he or she owned real estate.)
If the will is “self-proving,” no further proof of its validity is necessary unless someone challenges it. With a self-proving will, the witnesses who watched the will-maker sign also signed an affidavit (statement under oath), stating that the will-maker appeared to be of sound mind. If the witnesses merely signed their names to the will, then at least one of them must now provide a sworn statement or testimony about the will-signing. Ind. Code § 29-1-21-4
The court issues the executor a document called “letters testamentary,” which shows the executor’s authority over estate assets.
If there’s no will, a family member can ask to be appointed as the "administrator" of the estate. In this case, the court issues “letters of general administration” rather than "letters testamentary." While the terminology differs when there's no will, the concept is very similar; a person is given the authority to handle the estate.
The executor or administrator are both referred to as the “personal representative” of the estate. The personal representative has the responsibility for gathering the deceased person’s assets and taking care of them, paying debts and taxes, and ultimately distributing the estate assets to the people who inherit them.
The personal representative has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
The personal representative can request either supervised or unsupervised administration of the estate. As the name implies, the difference is the level of court involvement. With the more common unsupervised administration, the personal representative can wrap up the estate largely free of any need to report into or get approval from the probate court.
If the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state. That’s called an ancillary probate.
Unsupervised administration is allowed if:
Generally, unsupervised administration is appropriate when there are no disputes—over the will’s validity, for example—that need to be resolved by a court. Compared to supervised administration, fewer papers need be filed with the court, so it usually means lower lawyers’ bills. Anyone who will inherit under state law (if there’s no will) or under the will, however, can object to unsupervised administration if they want the court to keep an eye on the personal representative.
A personal representative who is using unsupervised administration can sell, mortgage, or lease real estate or other assets, and deal with inheritance and income taxes without getting the court’s approval. Usually, the personal representative is not required to post a bond.
The personal representative must prepare an inventory of estate assets within 60 days of becoming the personal representative, with an estimate of each asset’s fair market value. The inventory isn’t filed with the court, but any inheritor is entitled to a copy. Within a year, the personal representative must file a closing statement—or an explanation of why one isn’t ready—with the court.
Generally, a personal representative wouldn’t seek supervised administration unless there’s a good reason to want the probate court to weigh in. Attorneys’ fees are generally higher than with unsupervised administration because more papers must be prepared and filed with the court. Court intervention can be a good idea if:
In supervised administration, the personal representative must file an inventory of estate assets with the court. The personal representative must also get court approval before selling real estate, vehicles, securities, or other estate assets. Getting that consent may require getting assets appraised or asking the beneficiaries’ permission as well. After the estate is complete, the personal representative must file a detailed accounting showing the estate’s income and expenditures (with supporting receipts and other documents).
Whether or not there is a probate court proceeding, the personal representative or whoever inherits the deceased person’s assets outside of the will must use those assets to pay debts and taxes.
To find the names of creditors, the personal representative should go through the deceased person’s financial records (tax returns, checkbooks) and ask people who are likely to know what debts the person owed.
If there is a probate court proceeding (unsupervised or supervised), a notice of the proceeding is published in a local newspaper and mailed to all known heirs (people who inherit under state law in the absence of a will) and creditors listed in the petition for probate. The personal representative must also mail known creditors a copy of the notice within a month after it’s first published. Creditors have three months, after the date of first publication, to come forward to make claims against the estate.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if the estate generates a significant amount of income.
Additionally, a federal estate tax return will be required if the deceased person’s taxable estate is extremely large—for deaths in 2024, this means more than $13.61 million. More than 99.9% of all estates do not owe federal estate tax.
Until May 2013, Indiana had a state inheritance tax, which was imposed on certain people who inherit money from an Indiana resident. The tax was repealed.
]]>You might be surprised to find that many common assets actually do not need to go through probate. Examples of assets that you can transfer outside of probate include:
Other types of property will likely need to go through probate. However, small estates might qualify for certain probate shortcuts (see below).
A simplified and less expensive probate process is available in either of these situations:
The simplified process should take only two to four months. The probate court will then order the estate assets distributed to the people who inherit them. Ohio Rev. Code Ann. § 2113.03
No probate at all is necessary if the estate is worth less than $5,000 or the amount of the funeral expenses, whichever is less. In that case, anyone (except the surviving spouse) who has paid or is obligated to pay those expenses may ask the court for a summary release from administration.
Alternatively, the surviving spouse may ask for summary release from administration if:
Ohio Rev. Code Ann. § 2113.031
The person named to serve as executor in the deceased person’s will generally takes charge of the estate. If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint someone to serve as an "administrator," which is essentially the same role as an executor. The surviving spouse, if any, has first priority to be appointed as administrator.
The court issues a document called “Letters of Authority” that gives the executor or administrator the authority to manage the estate. The executor or administrator then does the following:
The executor must keep careful records of how estate assets are handled and distributed. (Read more about The Executor's Job.)
Formal probate can be expensive; that’s why so many people take steps to avoid probate. In Ohio, costs commonly include:
If the estate is large enough, it may also owe federal estate tax, but this tax will be due whether or not there is a probate court proceeding. Ohio used to have an estate tax, but it was repealed in 2013.
Most straightforward probate cases can be wrapped up within about nine months after the executor or administrator is appointed. Creditors have six months to file a claim, so probate must last at least that long. If the estate owes state or federal estate tax, it’s likely to take a year or more.
The case will also be delayed if someone files a will contest, alleging that the deceased person wasn’t of sound mind or was unduly influenced when signing the will. The contest must be filed within three months after interested persons are notified of the probate. Will contests, however, are rare.
If you're beginning a formal probate proceeding or have questions about Ohio probate laws, contact an Ohio probate attorney for additional guidance.
]]>Probate court proceedings are necessary only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without any probate court involvement.
Examples of common assets that do not need to go through probate include:
Even if the deceased person left some property that was owned in his or her name alone, formal probate may not be necessary. Michigan offers a simpler procedure for small estates. It’s available if:
In either of these situations, the probate court can order the assets turned over to the surviving spouse or heirs. (Heirs, the people entitled to inherit under state law when there’s no will, are the closest relatives.)
No probate at all is necessary if the estate is worth less than $15,000 and doesn’t contain any real estate. Instead, inheritors can use a simple affidavit (sworn statement) to claim assets held by a bank or other institution. For example, someone who inherits a bank account could fill out a small estate affidavit and take it, plus a copy of death certificate, to the bank, and the bank would release the funds.
You can get an affidavit form from the Michigan court system’s website. On the one-page form, the inheritor states that no probate proceeding has begun (or is planned), that the estate’s value is less than $15,000, and gives information about the deceased person. The statement is signed “under penalty of perjury,” which means that if you lie on it, you could be subject to prosecution for the crime of perjury (lying under oath).
If the deceased person owned vehicles with a total value of no more than $60,000, and no probate is necessary for other assets, the surviving spouse or next of kin (closest relative) can obtain ownership of the vehicles with a simple, fill-in-the-blanks form. This one-page form, called a “Certification From the Heir to a Vehicle,” is available from the state department of motor vehicles.
The person named to serve as executor (called a personal representative in Michigan) in the deceased person’s will generally takes charge of the estate. If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint someone to serve as personal representative. The surviving spouse, if any, has first priority to be appointed as personal representative if he or she inherits under the will. Mich. Comp. Laws § 700.3203.
Once the court issues a document called “Letters of Authority for Personal Representative,” the personal representative must:
The personal representative must keep careful records of how estate assets are handled and distributed.
Most Michigan probate cases can be wrapped up within seven months to a year after the personal representative is appointed. After notice of the probate is given, creditors have four months to file a claim. (Mich. Comp. Laws § 700.3801) If the estate owes federal estate tax (most don’t), probate is likely to take a year or more.
The case will also take longer if someone contests the will in court, alleging that the deceased person wasn’t of sound mind or was under undue influence when he or she signed the will. Will contests,, however, are rare.
In Michigan, probate costs commonly include:
If the estate is very large, it may owe federal estate tax. Estate tax isn’t affected by whether or not there is a probate court proceeding; even if no probate is necessary, tax may still be owed.
]]>Many or even all assets of the deceased person may be able to go to their new owner without any probate court involvement. The most common kinds of non-probate property are:
These types of property can avoid probate. If all of the deceased person's property falls into the categories listed above (for example, if the estate consists solely of living trust property and retirement accounts with named beneficiaries), you'll likely be able to avoid probate entirely. If there is other property in the estate, read on.
If you're planning your estate and want to learn more about common probate-avoidance techniques, see How to Avoid Probate.
In Florida, probate also may not be necessary if the estate consists of very little property. The estate can use a probate alternative called "disposition without administration" if:
(Fl. Stat. § 735.301.) In addition, if there's no will (in other words, the deceased person died intestate), the estate must also fulfill these requirements to qualify for disposition without administration:
(Fl. Stat. § 735.304.)
No property has to go through probate with this process. Instead, to request payment of what was left to you in the will or what you are entitled to by law, you file a form called “Disposition of Personal Property Without Administration,” which is available from the clerk of the court and on many Florida circuit courts’ websites. You list all of the property the deceased person owned and its value. There’s a filing fee; call ahead or check the court’s website to find out the exact cost.
You must attach a certified copy of the death certificate with your request. You must also file the will, if any, with the local circuit court. You may be required to provide additional documents, such as an itemized funeral bill, medical bills, documents related to the account from which you are seeking funds (such as a bank account, stock certificate or a document showing the nursing home is holding funds in escrow).
"Summary administration" is a probate shortcut that can be used by many Florida estates. It’s an option if either:
(Fl. Stat. § 735.201.)
To start this process, the person who was nominated in the will to be executor, or anyone who inherits property, files a document called a Petition for Summary Administration. The surviving spouse, if any, must sign and verify the petition. If any beneficiary doesn’t sign the petition, you must formally deliver (serve) that person with notice that you have filed the petition. (.)
In the petition, you state that the estate qualifies for summary administration, list the deceased person’s assets and their value, and state who inherits which assets.
The court doesn’t appoint a personal representative (executor or administrator) for the estate. Instead, the court, if it determines that the estate qualifies for summary administration, issues an order, releasing the property to the people who inherit it. You might use this court order to show a bank, for example, that you are the rightful inheritor of the funds in an account it holds.
If the estate doesn’t qualify for a simpler method of administration, formal probate may be necessary.
Florida law requires that anyone who has possession of a will must file it with the local circuit court within 10 days of learning of the death. This deadline is unusually short. While this requirement is technically part of Florida's probate rules, in practice many people end up filing past the 10-day deadline without consequences.
Probate proceedings begin when the executor nominated in the will, or another interested party, asks the circuit court to be appointed as personal representative of the estate. Generally, the probate proceeding takes place in the county where the deceased person was living at the time of death. Beneficiaries and heirs (people who would inherit in the absence of a valid will) are given notice, so they have a chance to object.
The court issues a document called Letters of Administration, which gives the personal representative authority to settle the estate. If there’s a will, it must be filed with the court and proven valid. This may be done by having the witnesses to the will give statements, under oath, about its validity. Or, if the will is “self-proving,” it’s enough to submit the document itself. Under Florida law, a will is self-proving if the witnesses, when they watched the will-maker sign the will, signed a statement in front of a notary public.
Under the court’s supervision, the personal representative gathers and inventories assets, pays debts and taxes, and (eventually) distributes what’s left to the people who inherit it. The personal representative must submit a final accounting to the court, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. Anyone who objects to the accounting can object in court.
After everything has been distributed, the personal representative files evidence (receipts) with the court and asks that the estate be closed. The court issues an order closing the estate and relieving the personal representative of further responsibilities.
Typically, the whole process takes six months to a year. However, each case is an individual situation, and some probates may take far longer. If someone challenges the validity of the will, for example, the circumstances can be very different, and timeline much longer, than the average case.
For more information on the probate process and the executor's responsibilities, see Nolo's book, The Executor's Guide: Settling a Loved One's Estate or Trust, by Mary Randolph.
Florida is one of the few states that sets out, in its statutes, lawyers’ fees that are presumed to be reasonable for estates of a certain value. (Fla. Stat. Ann. § 733.6171.) The fee is based on the value of the assets that go through probate, plus any income they earn during the probate proceeding. The value of homestead property is not counted.
Here are the statutory fees:
Value of the Estate | Lawyer's Fees |
Up to $40,000: | $1,500 |
$40,000 to $70,000: | $2,250 |
$70,000 to $100,000: | $3,000 |
$100,000 to $1 million: | $3,000, plus 3% of the value over $100,000 |
$1 million to $3 million: | $3,000, plus 2.5% of the value over $1 million |
$3 million to $5 million: | $3,000, plus 2% of the value above $3 million |
$5 million to $10 million: | $3,000, plus 1.5% on the value above $5 million |
More than $10 million: | $3,000, plus 1% of the value above $10 million |
These fees are only for “ordinary” services. Anything the lawyer does that isn’t ordinary—for example, handling a will contest or giving tax advice—is presumed to justify a larger fee. If a lawyer follows the fee schedule, the fee may be almost unrelated to the amount of legal work done. It’s the same amount of work to handle a $1 million brokerage account as it is to probate a $100,000 account—but under the statutory fee schedule, the bill for the million-dollar account would be ten times larger.
Florida attorneys aren’t required to follow this fee schedule, and many acknowledge that it often leads to inflated attorney fees. Especially if the estate you’re handling is greater than $100,000, be sure to find an attorney who will quote you a flat fee or work at an hourly rate.
]]>Probate in Tennessee commonly takes six months to a year. It may take longer if there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Not all assets need to go through probate. Only assets that the deceased person owned in his or her own name, alone, must go through probate. All other assets pass to new owners without oversight from the probate court. Assets that go through probate make up what’s called the “probate estate.”
Here are common kinds of assets that are NOT part of the probate estate:
Tennessee provides an alternative to regular probate if the estate is small. The simplified procedure is available if the total probate estate is worth no more than $50,000, not counting real estate. It can be used to transfer all estate assets except real estate. Learn more about simplified probate in Tennessee.
If the deceased person left a will, probate is begun when the person named as executor in the will deposits the original, signed will in the county clerk’s probate office in the county where the deceased person lived. The court issues this person “letters testamentary,” which give the person authority to take charge of estate assets. If there’s no will, a family member—usually the surviving spouse or grown child—asks the court to be appointed as administrator, and the court issues “letters of administration.”
The executor or administrator—known generally as the personal representative of the estate—has authority over any assets that go through probate. Usually, the personal representative opens a checking account for the estate, puts the money from the deceased person’s accounts in it, and uses the funds to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
If there’s a will, its validity must be proven in court. If the will was signed in front of two witnesses, one of them must either come to court or submit a sworn statement on the validity of the will. But, if the will is contested, both witnesses must state the validity of the will. (Tenn. Code Ann. § 32-2-104)
If the will wasn’t witnessed, but it is signed and entirely in the handwriting of the person who made it, it’s called a "holographic will." To prove its validity, two witnesses must testify to the authenticity of the handwriting. (Tenn. Code Ann. § 32-1-105)
The personal representative must notify creditors of whom he or she is aware. A personal representative can usually find the names of creditors by going through the deceased person’s financial records, mainly tax returns and checkbooks.
The court clerk also publishes notice of the death in a local newspaper, to give creditors a chance to make claims. Depending on whether or not, and when, the creditors receive actual notice of the probate proceedings, they may have from four to 12 months to make a formal claim. Most creditors submit claims informally, and the personal representative pays them. (Tenn. Code Ann. § 30-2-306)
Within 60 days after being appointed, the personal representative must:
When debts and taxes are paid, the personal representative can pay what’s left of the probate estate to the people entitled to inherit it.
If the deceased person owned real estate in another state, the personal representative may need to conduct a probate proceeding in that state. That’s called an ancillary probate.
It’s the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the deceased person’s taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99% of all estates do not owe federal estate tax.
Tennessee used to have its own estate tax, which was imposed on estates worth more than $5 million (for deaths in 2015). The tax was referred to in Tennessee as an inheritance tax, but it functioned like an estate tax because it affected only estates that have a total value of more than a certain dollar amount. The tax was phased out and then eliminated as of January 1, 2016.
]]>In Arizona, many types of assets don’t need to go through probate. These assets automatically pass to their new owners without oversight from the probate court.
To learn more about how to avoid probate, see Avoiding Probate in Arizona.
Some estates can take advantage of shortcuts that avoid the full probate procedure.
Claiming property with an affidavit. Beneficiaries of small estates can claim their inheritance using a “small estate affidavit.” To use this simplified procedure, you fill out a small estate affidavit form, attach a death certificate (to learn how to obtain a death certificate, see the Arizona Department of Health Services website), and then present the affidavit to the person or institution—such as a bank or broker—holding the asset. Learn more about Claiming Property with Affidavits.
Here are the requirements for using a small estate affidavit in Arizona:
Personal property: To use an affidavit to claim personal property:
Arizona Revised Statutes §14-03971
Real estate: To use an affidavit to claim real estate:
Arizona Revised Statutes §14-03971
Simplified probate for all estates. Some small estates qualify for a simplified version of the probate process, called summary probate An estate will qualify for simplified probate if its value (less mortgages and liens) is less than the total value of:
After distributing all assets, the person appointed by the court to handle the estate—the personal representative (PR)—can close the estate by filing a petition with the court.
Arizona Revised Statutes §14-03973
For more information on probate shortcuts, see Probate Shortcuts in Arizona.
If property must go through probate, Arizona provides several options.
Informal probate. Informal probate is the simplest form of probate, used when there is a valid will that has not been challenged. The personal representative appointed by the court administers the estate with minimal court supervision.
Formal probate. The court uses formal probate to resolve an estate’s legal issues – for example, if the validity of a will is contested, there is a dispute over who should be appointed personal representative, or there are conflicting interpretations of a will.
Learn more about Contesting a Will.
Supervised probate. Some estates require supervised probate, in which the court oversees every step of the probate process. This means the personal representative must go to the court and ask for approval before taking any actions, such as paying creditors or distributing assets. Any person who has an interest in an estate can request supervised probate. Probate courts usually require supervised probate when it is necessary to protect an inheritor, creditor, or other interested party.
In Arizona, probate gets started when the person who wants to be appointed as personal representative files the will (if any) and a petition with the probate court. The court will appoint the person named as executor (personal representative) in the will, unless there's a very good reason why that person can't or shouldn't serve. If there's no will or the will doesn't name a PR, the court turns to state law, which lists who has priority for appointment. The surviving spouse is first on the list.
The court determines the validity of the will and gives the personal representative “letters of administration,” an official document showing the PR’s right to manage the estate.
Next, the personal representative notifies inheritors and creditors about the estate administration as part of the executor’s job. The personal representative notifies inheritors within 30 days of death. The personal representative publishes a notice to creditors in a local newspaper for three weeks, and mails notice to all known creditors. Creditors must make claims within four months after the notice is published. Known creditors who received the mailed notice can make claims within 60 days of the mailed notice, even if it falls outside the four-month period.
After notice, the personal representative gathers all the assets of the estate. The personal representative inventories, manages, and protects these assets. After creditors have been paid, the personal representative can distribute the assets to the beneficiaries. The personal representative then closes the estate by filing a petition for closing with the court. Arizona Revised Statutes §14-03801
Learn more about Estates, Executors, and Probate Courts.
]]>Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets, called “nonprobate” property, can probably be transferred to their new owners without probate.
Common nonprobate assets include:
If the deceased person didn’t leave a lot of valuable property, surviving family members may not need formal probate proceedings. There are two options, one for real estate and one for other property:
Learn more about these Virginia probate shortcuts.
Probate in is handled by the circuit court in the county in which the deceased person owned a home (or other real estate) or resided. If the person was in a hospital or nursing home at the time of death, the county where the person lived before that is considered his or her residence. Usually, the circuit court clerk handles probate paperwork; the circuit judge isn’t involved unless there is a conflict that needs to be resolved.
If probate is necessary, the person named in the will to serve as executor starts the process by going to the appropriate circuit court. You’ll need to supply:
You’ll also have to file, on a form supplied by the court, a list of heirs (people who inherit under Virginia law if there’s no will). (Va. Code Ann. § 64.2-509.) If the will isn’t “self-proving,” one of the two witnesses who watched the deceased person sign it and signed the will themselves must appear in court (or submit a sworn statement) as well. Virginia allows handwritten (holographic) wills, but to prove the will’s validity you’ll need to produce two people who know the deceased person’s handwriting and don’t stand to inherit under the will.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor. Under Virginia law, anyone who inherits from the deceased person can be appointed as administrator. Both executors and administrators are commonly referred to as “personal representatives” or “fiduciaries.”
An executor or administrator who is not a Virginia resident must appoint a resident as his or her agent; this person is authorized to accept legal communications on behalf of the out-of-state executor and is subject to Virginia courts’ jurisdiction. A nonresident personal representative must also post a bond, which is a kind of insurance policy that protects the estate from losses caused by the personal representative.
There is a state probate tax, based on the value of the assets in the estate. There may also be an additional local probate tax that is one-third of the amount of the state probate tax. There are also court fees to open a probate case. All of these fees can be paid from estate assets.
The circuit court will give the fiduciary a certificate of qualification. This document can be shown to third parties to show that the personal representative has legal authority over the deceased person's assets.
Within 30 days after being qualified by the court, the personal representative must mail notice of the proceeding to all heirs (people who inherit under state law in the absence of a will) and beneficiaries named in the will. The notice lets them know they have the right to get copies of the inventory, accountings, and other probate documents. (Va. Code Ann. § 64.2-508.)
An executor or administrator is entitled to reasonable compensation for the work of settling the estate.
It’s the personal representative’s job to:
Usually, the personal representative opens a bank account for the estate. The executor deposits amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments) into the account, and uses the funds to pay estate expenses.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
The personal representative must file an inventory of estate assets with the Commissioner of Accounts, someone (commonly a local lawyer) who is appointed by the circuit court to oversee estates. Later, the personal representative must submit annual accountings, which show all assets of the estate and all distributions. An accounting must be accompanied by receipts, bills, bank statements or other papers that document each transaction.
It’s the personal representative’s job to pay valid debts and expenses of the estate. Most creditors send bills informally, but they can submit formal claims to the Commissioner of Accounts. If the personal representative disputes the claim, the commissioner can hold a hearing on it.
If there’s not enough money in the estate to pay all debts, the personal representative must turn to the priority list in Virginia law. The allowance for support of the surviving spouse and minor children (under 18) has the highest priority. It can be paid in a lump sum of up to $24,000, or in monthly payments of $2000 for a year. Next come probate costs, funeral costs, taxes, medical expenses, and debts to Virginia. The list goes on; you’ll need to consult it only if there isn’t enough money to pay all the bills. If that’s your situation, get legal advice before you pay anyone.
The personal representative must file final Virginia and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99.9% of all estates do not owe federal estate tax. Virginia doesn’t impose its own estate tax.
After debts and taxes are paid, the personal representative distributes the assets, following the instructions in the will, or if there is no will, Virginia law. If there’s no will, the deceased person’s closest relatives inherit. When the court is satisfied that the personal representative has correctly paid debts, filed required tax returns, and distributed assets, it will relieve the personal representative of his or her duties.
]]>Conducting a probate in Massachusetts usually takes a year or so, because creditors have a year (after the death) in which to come forward with claims. It can take much longer if there is a court fight over the will (which is rare) or unusual assets or debts that complicate matters.
Probate court proceedings aren’t always necessary. Usually, they are required only if the deceased person owned assets in his or her name alone. Other assets can probably be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
Massachusetts makes two kinds of simplified probate available in certain circumstances.
First, if the deceased person left no real estate and all the property in the estate is worth no more than $25,000 (minus the cost of a vehicle), any interested person may offer to serve as voluntary personal representative (executor). The personal representative, when authorized by the court, gathers property, pays debts, notifies the Massachusetts Division of Medical Assistance of the death, and eventually distributes the remaining property. This process is called Voluntary Administration. (Mass. Gen. Laws Ann. § § 3-1201, 1202).
Second, a simple process is also available if the value of entire estate, less liens and encumbrances, does not exceed the combined value of exempt property (property that a creditor couldn't take even if there were a debt the estate couldn't pay), the family allowance, and the costs of probate, funeral expenses, and last illness. The court appoints a personal representative, who may immediately distribute estate assets and file a closing statement with the court. (Mass. Gen. Laws Ann. § § 3-1203, 1204).
For more information, see Probate Shortcuts in Massachusetts.
If probate is necessary, the person named in the will to serve as personal representative (executor) will start the process in the Probate and Family Court Department of the Trial Court in the county where the deceased person lived. The prospective personal representative files the will, if any, with a death certificate and a document called a Petition, which contains a request to be formally appointed as personal representative. (Mass. Gen. Laws Ann. § § 3-301). If there is no will, or the person named in the will isn’t available or willing to serve, the surviving spouse has first priority to be appointed as personal representative.
When the probate court appoints a personal representative, it issues a document called “Letters.” This document is proof of the personal representative’s legal authority to collect and manage estate property.
The personal representative is entitled to collect a reasonable fee for the work performed for the estate. Many personal representatives who inherit money from the estate choose not to take a fee, in part because the fee is taxable income.
Massachusetts has adopted a set of laws called the Uniform Probate Code, designed to make probate simpler and less expensive. Under the UPC, there are informal and formal probate procedures.
Most estates use the informal procedure, which is conducted by a court official called a magistrate. The personal representative is free to collect assets and pay debts and distribute property with virtually no supervision by the court. The personal representative can close the estate by filing a sworn statement, which says that debts, taxes, and other expenses have been paid and that the estate assets have been transferred to the people entitled to inherit them.
Formal probate is necessary if there’s a dispute among beneficiaries; the proceedings are conducted by a judge. The judge approves actions of the personal representative (for example, selling an estate asset), and interested persons must be given notice of proposed actions.
Either kind of probate must begin, in most cases, no more than three years after the death.
In broad overview, the personal representative’s job is to:
The personal representative should inventory estate assets, estimate their value, and keep careful records (for example, receipts, bills and bank statements) of how estate assets are handled and distributed.
Usually, the personal representative opens a checking account for the estate and uses it for amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments), and to pay estate expenses. A taxpayer identification number must be obtained from the IRS before an account can be opened.
The personal representative has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
If the deceased person owned real estate in another state, the personal representative may need to conduct a second probate proceeding, in that state. That’s called an ancillary probate.
In Massachusetts, the personal representative does not have to individually notify creditors about the probate proceeding. In formal probate, however, the personal representative must publish notice of the proceeding in a local newspaper. No matter what kind of probate proceeding is used, the personal representative has the obligation to pay valid debts with estate assets.
It’s also the personal representative’s responsibility to file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself.
A federal estate tax return will be required only if the deceased person’s taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99.9% of all estates do not owe federal estate tax.
Massachusetts imposes its own estate tax, in addition to the federal tax, on estates worth more than $1 million.
The personal representative can distribute estate assets to inheritors only after debts and taxes are paid. The personal representative follows the instructions in the will, or if there is no will, turns to state “intestate succession” law to determine who inherits.
Unless the probate is formal and court-supervised, closing the probate court proceeding is done informally. The personal representative files a statement, stating that:
Generally, only assets that the deceased person owned in his or her name alone go through probate. Everything else can probably be transferred to its new owner without probate court approval.
The most common kinds of nonprobate property are:
Small amounts of cash can also go to the surviving spouse (or, if there is no surviving spouse, to the children or more distant relatives) without probate, in certain situations:
Money in bank accounts. Financial institutions may release up to $10,000 to the surviving spouse or another close family member without probate court authorization. All the survivor must do is show the bank a certified copy of the death certificate and proof that funeral expenses have been paid.
Wages. Employers may pay up to $10,000 in wages, salary, or other compensation to the employee's surviving spouse or another close family member. Probate court approval is not necessary.
Life insurance payable to the estate. If an insurance company owes the deceased person's estate up to $11,000 in life insurance benefits, and the personal representative of the estate doesn’t claim it within 60 days after the death, the company may pay the money to the surviving spouse or another close family member without probate court approval. (20 Pa. Cons. Stat. Ann. § 3101.)
Not all estates must go through a long and expensive probate process. Pennsylvania offers a simplified probate process for small estates, which state law defines as estates that contain no more than $50,000 in assets. That total does not include real estate, certain amounts the family can collect without probate, and amounts used to pay funeral expenses. (20 Pa. Cons. Stat. Ann. § 3102.)
To begin the small estate process, the executor of the estate files a written request with the local probate court, asking to use the simplified procedure. The court may permit the executor to distribute the deceased person’s assets without going through all the parts of regular probate.
If the estate is too large to qualify for simplified probate, you’ll need to conduct a formal probate proceeding. This begins when the executor named in the will files the will with the Register of Wills in the county in which the deceased person lived. If there is no will, the surviving spouse or an adult child usually steps forward to serve as the administrator of the estate. (The term “personal representative” is often used to mean either executor or administrator.)
The personal representative also files a document called a petition for probate, asking the local probate court (“orphans’ court”) to open a probate case. Courts in many counties make all the required forms available online, where you can fill them in and then print them. There is a filing fee that may be several hundred dollars; the greater the value of the estate, the larger the fee.
The court issues “Letters Testamentary” to the executor or, if there is no will, “Letters of Administration” to the administrator. This document gives the personal representative authority to gather the estate assets and begin acting on behalf of the estate.
Many Pennsylvania wills are “self-proving”–that is, they are accompanied by sworn, notarized statements signed by the witnesses who watched the deceased person sign the will. If the will isn’t self-proving, then to prove that the will is valid, the personal representative will have to get sworn statements from the witnesses and file them with the court.
The personal representative must then give notice to heirs, beneficiaries, creditors, and the public that the probate is beginning. This is accomplished by publishing a legal notice in two local newspapers.
The personal representative’s job involves gathering and inventorying estate assets and paying debts and taxes. The personal representative may also need to sell estate property during the probate process. Most transactions don’t need prior approval from the court, though the personal representative must periodically file status reports with the court.
Pennsylvania imposes an inheritance tax which is due when anyone but the surviving spouse or a charity inherits from the deceased person. Some personal representatives pay the estimated amount of inheritance tax within three months after the death. It’s not due until nine months after the death, but paying early gives the estate a five percent discount off the tax bill.
Pennsylvania does not impose its own estate tax. If the estate is very large—for deaths in 2024, more than $13.61 million—federal estate tax may be due. But more than 99.9% of estates do not owe federal estate tax.
Finally, when taxes and debts have been paid, the personal representative will be ready to distribute what’s left to the people who inherit it. The personal representative must prepare a final accounting, showing what the estate contained, how the assets have been managed, and the plan for distributing them to beneficiaries. It’s common for the beneficiaries to approve the accounting by signing a document called a family settlement agreement. But a personal representative who thinks that creditors might come up with claims later might choose to also file the formal accounting with the court; if approved, this will cut off the rights of third parties to make a claim from the estate. The court may require that its own form be used for the accounting.
]]>Probate court proceedings are required only if the deceased person owned assets in his or her name alone. Other assets can usually be transferred to their new owners without probate.
Examples of common assets that do not need to go through probate include:
If the value of the estate isn’t too large, North Carolina offers an unusual procedure, which lets you get approval from the local probate (superior) court to wind up the estate without formal probate. All you need to do is to file one simple form with the court.
You can get a fill-in-the-blanks form, called an Affidavit for Collection of Personal Property of Decedent, from the court clerk’s office or the North Carolina courts website. On the form, you state that the value of the estate’s personal property (everything but real estate) is less than $20,000 (or less than $30,000 if the surviving spouse inherits everything under state law) and that at least 30 days have passed since the person’s death. You must provide other information about the deceased person’s assets as well.
You file a copy of the completed affidavit with the clerk of the superior court in the county where the deceased person lived. Once you’ve filed the form, you may present a certified copy to institutions that have custody of property you’re inheriting (a bank, for example) or control the paperwork you need to get the asset into your name (the department of motor vehicles, for example). The institution will turn the property over to you or issue a new title document showing you as the owner.
If no one has initiated a probate proceeding, the person who files the affidavit collects the personal property, pays debts of the estate, and distributes what’s left to the people who inherit it. That person then files another affidavit with the court (within 90 days of the first one), stating how the assets were distributed. N.C. Gen. Stat. § § 28A-25-1 and following.
North Carolina offers a simplified probate procedure, called summary probate, if the only surviving beneficiary (person named in the will to inherit) or heir (person who has the legal right to inherit under state law if there’s no will) is the surviving spouse of the decedent. The spouse files a petition with the court, along with the will and any supporting evidence. The court clerk enters an order that no further probate proceeding is necessary. The surviving spouse presents a certified copy of this order and collects the property, similar to the affidavit process described above. N.C. Gen. Stat. § 28A-28-1
If the value of the estate exceeds the amount for the affidavit process or summary administration, the court appoints an executor (if someone was named in the will) or an administrator (if there is no will or the person named in the will isn’t available or willing to serve) to take charge of the estate. The surviving spouse, if any, has first priority to be appointed as administrator. Both executors and administrators are known as “personal representatives” of the estate.
If you want to serve as executor or administrator, you must apply to the clerk of the court in the county where the deceased person was a resident at the time of death. You can use a form provided by the clerk’s office. With it you’ll need to supply a preliminary inventory of the deceased person’s assets, listing what the person owned (real estate, bank accounts, vehicles, and so on) and their estimated value as of the date of death. There is a $120 fee to open an estate, plus a percentage based on the value of the gross estate. N.C. Gen. Stat. § 28A-6-1
If you’re appointed executor, the court will issue a document called “Letters Testamentary,” which gives you authority to handle the assets. If you’re appointed as administrator, you’ll receive “Letters of Administration.” You must take an oath of office, promising to faithfully carry out your duties.
If you’re not a North Carolina resident, you must appoint a resident as your “agent”—someone who is in the state and can receive official court documents on your behalf. You may also be required to post a bond, which is a kind of insurance policy that protects the estate if you cause it loss because of incompetence or dishonesty. (State residents generally don’t have to furnish a bond.)
You may, however, have to post a bond if you are an administrator and there are young (under 18) heirs. But if all the heirs are adults and sign a waiver, or if you are the sole heir, you won’t have to furnish a bond. N.C. Gen. Stat. § 28A-8-1
The personal representative is entitled to reimbursement for out-of-pocket costs (for example, postage) and to compensation, called a commission, for the work involved in settling an estate. Unless the will establishes the amount of compensation (most don’t), the court clerk can allow a fee of up to five percent of the value of the money that the estate receives and gives out. In approving compensation clerk is required to take into account the actual work done in settling the estate—how much time it took and how difficult it was. The court clerk must also approve the fees of an attorney, if the PR hired one to help with the estate.
Probate in North Carolina is a fairly straightforward process. The state court system provides many fill-in-the-blanks forms online, and the process is relatively informal. The superior court clerk, an elected county official, acts as the probate judge. (Clerks are often referred to as “ex officio” probate judges, which just means that they are judges because they hold the office of clerk).
The personal representative must:
The personal representative has authority over all assets of the deceased person that go through probate; these assets make up the “probate estate.” Probate assets typically include vehicles, real estate, bank and brokerage accounts, and personal belongings such as jewelry, furniture, art, and collections.
Usually, the personal representative opens a bank account for the estate, and deposits money from existing cash accounts into the estate account. Amounts paid to the estate (for example, wages owed to the deceased person, refunds, and other miscellaneous payments) also go into the estate account, and its funds are used to pay estate expenses.
A personal representative who wants to sell any real estate in the estate—for example, if it’s necessary to raise cash to pay debts—must first get permission from the court clerk unless the will directs the executor to sell the property or the will gave the personal property to the personal representative.
One of the first jobs of the personal representative is to publish a notice of the probate proceeding in a local newspaper, once a week for four weeks. (If there isn’t a printed newspaper in the county, the notice can be posted at the courthouse and other public places; the clerk’s office will have information on what to do.) This alerts creditors that they should come forward with any claims against the estate within three months after the date of first publication of the notice.
The personal representative must also deliver or mail a notice to creditors about how, when, and where they can file claims against the estate. Notice must be sent to all creditors the PR knows about or can discover with a reasonable amount of investigation. If the PR has already paid a claim, or will pay it, a mailed notice isn’t necessary. N.C. Gen. Stat. § 28A-14-1
If there isn’t enough money in the estate to pay all the debts, state law sets a priority. Assets that have liens (legal claims) attached to them have first priority; after that come funeral and burial expense (up to $3,500), taxes, and then other expenses. N.C. Gen. Stat. § 28A-19-6. The surviving spouse and minor children are entitled to a year’s support. N.C. Gen. Stat. § 30-3.1
The executor must file final state and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
State and federal estate tax returns will be required only if the taxable estate is very large—for deaths in 2024, more than $13.61 million. The vast majority of estates—more than 99.9%--do not owe federal estate tax. North Carolina repealed its state estate tax in 2013.
When debts and taxes have been paid, the personal representative can distribute the property to the people who inherit it. The personal representative must follow the directions in the will, or if there is no will, give property to the closest surviving relatives, as state law directs.
Before the estate can be closed, the personal representative must file a final accounting with the court. The accounting is a statement showing all the transactions the personal representative entered into on behalf of the estate. (If the estate stays open more than a year, an accounting must be filed annually). The accounting must be accompanied by evidence of all transactions, such as canceled checks, receipts, and bank statements. N.C. Gen. Stat. § 28A-21-2
For more information on the probate process and the executor's responsibilities, see,, The Executor's Guide: Settling a Loved One's Estate or Trust, by Mary Randolph Nolo.
]]>Probate court proceedings aren’t always necessary. Some assets, called “nonprobate” assets, can be transferred to their new owners without probate.
Common nonprobate assets include:
You might find that all or most of the deceased person's property can be transferred without going through probate.
If the deceased person didn’t leave a will or a lot of valuable property, surviving family members can take advantage of New Jersey’s simplified probate procedures. The streamlined probate, which is quicker and less expensive than regular probate, is available to:
Instead of regular probate, these probate shortcuts involve filing an affidavit (sworn statement) with the court to claim the deceased person's property. No court proceedings are necessary.
If the estate doesn't qualify for simplified procedures, and the assets must go through probate, the estate will likely have to go through the regular probate process in New Jersey. This process is handled by the probate court (called "surrogate court" in New Jersey) in the county in which the deceased person lived.
Below are the main steps in the New Jersey probate process. If all goes smoothly, the process should take less than a year.
If the deceased person named you to serve as executor in his or her will, and probate is necessary, you will go to the surrogate’s court and request to be formally appointed as executor of the estate. This can happen as soon as 10 days after the death. You’ll need to supply the will and a certified copy of the death certificate. If the will isn’t “self-proving,” one of the two witnesses who watched the deceased person sign it and signed the will themselves must appear in court (or submit a sworn statement) as well.
If there is no will, or the person named in the will isn’t available or willing to serve, the probate court will appoint an “administrator.” This person does the same job as an executor. New Jersey law gives the surviving spouse or domestic partner, if any, first priority to be appointed as administrator.
An executor or administrator who is not a resident of New Jersey must post a bond, unless the will states that it’s not necessary. A bond is a kind of insurance policy that protects the estate if the executor or administrator mismanages or steals estate funds.
Unless there is reason to think the will is not valid, or someone is contesting the will in court (this is called a “will caveat”), the surrogate’s court will issue a document called “Letters Testamentary” (if the executor was named in the will) or “Letters of Administration” (if the court appoints an administrator). This document gives the executor or administrator the duty and authority to:
Within 60 days after a will is admitted to probate, the executor or administrator must mail notice of the proceeding to all heirs (people who inherit under state law in the absence of a will) and beneficiaries named in the will.
An executor or administrator is entitled to compensation, called a commission, for the work of settling the estate. The commission is 6% of income received by the estate plus 5% of the value of the gross estate for estates up to $200,000.00, 3.5% on the excess above $200,000 to $1 million, and 2% on amounts over $1 million. NJ Rev. Stat. § § 3B:18-13 and -14.
Usually, the executor or administrator opens a bank account for the estate and consolidates existing cash accounts in the estate account. The executor deposits amounts that come into the estate (for example, compensation earned by the deceased person, refunds, and other miscellaneous payments) into the account and uses the funds to pay estate expenses.
The executor or administrator has authority over any assets that go through probate. Probate assets can include vehicles, real estate, bank and brokerage accounts, and personal belongings (for example, jewelry, home furnishings, artwork, and collections). Life insurance proceeds that are payable to the estate (not a named beneficiary) are also probate assets.
The executor or administrator must keep careful records of how estate assets are handled and distributed and may need to submit receipts, bills and bank statements to the court. Before the probate can be closed, the executor will have to submit an accounting, showing all assets, disbursements of estate money, and proposed distribution to inheritors. If all the beneficiaries approve the accounting, a formal approval from the court isn’t necessary.
It’s the executor’s job to pay valid debts and expenses of the estate. The executor can ask the court for an Order Limiting Creditors; this gives creditors nine months to come forward with claims. NJ Rev. Stat. § 3B:22-4.
If there’s not enough money in the estate to pay all debts, the executor or administrator must turn to state law, which prioritizes claims. The family is paid first; the surviving spouse and children under 18 are entitled to a year’s support. After that come funeral expenses, costs of probate (court filing fees, lawyers’ fees, and more), taxes, and expenses of the last illness, in that order. The list goes on; you’ll need to consult it only if the estate can’t pay all the bills. If that’s your situation, you’ll want to get legal advice before you start writing checks. NJ Rev. Stat. § 3B:22-2
The executor or administrator must file final New Jersey and federal income tax returns for the deceased person. These returns are generally due by April 15 of the year following the year of death. Income tax returns may also be required for the estate itself, if it receives income.
A federal estate tax return will be required only if the taxable estate is very large—for deaths in 2024, more than $13.61 million. More than 99% of all estates do not owe federal estate tax. New Jersey did away with estate tax for deaths that occurred in 2018 and later.
However, New Jersey imposes an inheritance tax. Unlike estate tax, inheritance tax rates are not based on the amount of the entire estate, but on who inherits. More distant relatives and unrelated persons pay a higher rate than close family members.
The executor or administrator can distribute estate assets to inheritors only after debts and taxes are paid. The executor must also check, before distributing assets, to be sure that an inheritor has not been found liable for back child support. This is called a Child Support Judgment search. (NJ Rev. Stat. § 2A:17-56.23b.)
The executor or administrator follows the instructions in the will, or if there is no will, turns to state law to determine who inherits. New Jersey law provides that the deceased person’s closest relatives inherit his or her assets. When the executor or administrator has paid all debts, filed the required tax returns, and distributed all the estate assets, the court will relieve the executor of his or her duties.
For more information on navigating the probate process and settling a loved one's estate, see The Executor's Guide, by Mary Randolph (Nolo).
]]>Only assets that pass through probate are affected by intestate succession laws. Many valuable assets don't go through probate, and therefore aren't affected by intestate succession laws. Here are some examples:
These assets will pass to the surviving co-owner or to the beneficiary you named, whether or not you have a will. However, if you don’t have a will and none of the named beneficiaries are alive to take the property, then the property could end up being transferred according to intestate succession.
To learn more about these types of assets, go to the How to Avoid Probate section of Nolo.com or read about Avoiding Probate in Georgia.
Under intestate succession, who gets what depends on whether or not you have living children, parents, or other close relatives when you die. Here’s a quick overview:
If you die with: |
here’s what happens: |
children but no spouse | children inherit everything |
spouse but no descendants | spouse inherits everything |
spouse and descendants | spouse and descendants equally share the intestate property, but the spouse’s share may not be less than 1/3 |
parents but no spouse or descendants | parents inherit everything |
siblings but no spouse, descendants, or parents | siblings inherit everything |
(Ga. Code § 53-2-1 (2023).)
In Georgia, if you are married and you die without a will, what your spouse gets depends on whether or not you have living descendants—children, grandchildren, or great-grandchildren. If you don’t, then your spouse inherits all of your intestate property. If you do, they and your spouse will share your intestate property equally, except that your spouse’s share cannot be less than 1/3. (Ga. Code § 53-2-1 (2023).)
Example: Bill is married to Karen, and they have three grown children. Bill and Karen own a house in joint tenancy, and Karen is also the named beneficiary of Bill’s retirement account. When Bill dies, Karen automatically inherits the house and any remaining retirement funds; those things are not intestate property. Bill also owns $300,000 worth of other property that would have passed under a will, so Karen inherits 1/3—that is, $100,000 worth—of that property. The three children split the remaining $200,000 worth of Bill’s intestate property.
If you die without a will in Georgia, your children will receive an “intestate share” of your property. The size of each child’s share depends on how many children you have and whether or not you are married. (See the table above.)
For children to inherit from you under the laws of intestacy, Georgia must consider them your children, legally. For many families, this is not a confusing issue. But it’s not always clear. Here are some things to keep in mind.
This can be a tricky area of the law, so if you have questions about your relationship to your parent or child, get help from an experienced attorney.
If you die without a will and don’t have any family, your property will “escheat” into the state’s coffers. (Ga. Code §§ 53-2-50; 53-2-51 (2023).)
However, this very rarely happens because the laws are designed to get your property to anyone who was even remotely related to you. For example, your property won’t go to the state if you leave a spouse, children, grandchildren, parents, grandparents, siblings, nieces, nephews, or cousins.
Here are a few other things to know about Georgia’s intestacy laws.
To learn more about intestate succession, read How an Estate Is Settled If There’s No Will.
You can find Georgia's intestate succession laws in Title 53, Chapter 2, Article 1 of the Georgia Code.
For more about estate planning, go to the Wills, Trusts & Probate section of Nolo.com.
]]>Probate is a legal process that takes place after someone dies. It includes:
Typically, probate involves paperwork and court appearances by lawyers. The lawyers and court fees are paid from estate property, which would otherwise go to the people who inherit the deceased person's property. To see everything Nolo has to offer when it comes to estates, executors, and probate, visit our Wills, Trusts & Estates Center.
Probate usually works like this: After your death, the person you named in your will as executor—or, if you die without a will, the person appointed by a judge—files papers in the local probate court. The executor proves the validity of your will and presents the court with lists of your property, your debts, and who is to inherit what you've left. Then, relatives and creditors are officially notified of your death.
Your executor must find, secure, and manage your assets during the probate process, which commonly takes a few months to a year. Depending on the contents of your will, and on the amount of your debts, the executor may have to decide whether or not to sell your real estate, securities, or other property. For example, if your will makes a number of cash bequests but your estate consists mostly of valuable artwork, your collection might have to be appraised and sold to produce cash. Or, if you have many outstanding debts, your executor might have to sell some of your property to pay them. (Learn more about the probate process from the executor's point of view.)
In most states, immediate family members may ask the court to release short-term support funds while the probate proceedings lumber on. Then, eventually, the court will grant your executor permission to pay your debts and taxes and divide the rest among the people or organizations named in your will. Finally, your property will be transferred to its new owners.
No. Most states allow a certain amount of property to pass free of probate or through a simplified probate procedure. In California, for example, you can pass up to $184,500 of property without probate, and there's a simple transfer procedure for any property left to a surviving spouse.
In addition, property that passes outside of your will—say, through joint tenancy or a living trust—is not subject to probate. For a discussion of the most popular probate-avoidance methods, see How to Avoid Probate.
In most circumstances, the executor named in the will takes this job. If there isn't any will, or the will fails to name an executor, the probate court names someone (called an administrator) to handle the process. Most often, the job goes to the closest capable relative or the person who inherits the bulk of the deceased person's assets.
If no formal probate proceeding is necessary, the court does not appoint an estate administrator. Instead, a close relative or friend serves as an informal estate representative. Normally, families and friends choose this person, and it is not uncommon for several people to share the responsibilities of paying debts, filing a final income tax return and distributing property to the people who are supposed to get it.
For details on the probate process in your state, see Probate Shortcuts in Your State and Avoiding Probate in Your State.
Probate rarely benefits your beneficiaries, and it always costs them money and time. Probate makes sense only if your estate will have complicated problems, such as many debts that can't easily be paid from the property you leave.
Whether to spend your time and effort planning to avoid probate depends on a number of factors, most notably your age, your health, and your wealth. If you're young and in good health, adopting a complex probate-avoidance plan now may mean you'll have to re-do it as your life situation changes. And if you have very little property, you might not want to spend your time planning to avoid probate because your property may qualify for your state's simplified probate procedure.
But if you're in your 50s or older, in ill health, or own a significant amount of property, you'll probably want to do some planning to avoid probate. For more information on estate planning, see Nolo's bestseller, Plan Your Estate.
To learn more about the reasons for avoiding probate, see Why Avoid Probate?
Probate isn’t always necessary. If the deceased person owned assets in joint tenancy with someone else, or as survivorship community property with his or her spouse, or in a living trust, those assets won’t need to go through probate. The same is true for assets held in a revocable living trust and accounts for which a payable-on-death beneficiary has been named. (For a rundown of common probate-avoidance techniques, see our book, Every Californian's Guide to Estate Planning, by Liza Hanks(Nolo)).Assets inherited by the surviving spouse or registered domestic partner can also be transferred with a streamlined procedure, using a document called a Spousal (or Domestic Partner) Property Petition. The probate court is involved, but the process is simple and quick. There is no limit on the value of property that can be
Other assets may not need to go through probate, either. If the total value of the probate estate (the assets that can’t be transferred to inheritors in one of those other ways) is small enough, probate won’t be necessary. Currently, the cap is $184,500. Inheritors can claim the assets with a simple sworn statement (affidavit) or can go through a streamlined summary probate process. Cal. Probate Code § 13100.
(For more information, see “Probate Shortcuts in California.”)
If probate is necessary, someone must come forward to start the process. If there’s a will, the executor named in the will should get the ball rolling. If there’s no will, or the person named to serve as executor isn’t available, then usually a family member asks the court to be appointed as the “administrator” of the estate. It’s the same job.
The executor’s job will probably last six months to a year. First, the executor files the will, along with a document called “Petition for Probate,” with the probate court in the county where the deceased person lived. There is a filing fee of about $435; some counties charge a bit more. Some other forms may need to be filed as well, and formal notices need to be given to beneficiaries, particular family members and creditors. The will, if there is one, must be shown to be valid; usually this is done by having the witnesses sign a sworn statement that’s submitted to the court. When everything is in order, the court issues “Letters Testamentary” or “Letters of Administration,” appointing an executor and granting that person authority over estate assets.
Once the executor has this authority, the process of gathering the deceased person’s assets can begin. It’s also the time for the executor to get organized, set up a filing system so that benefits and bills aren’t overlooked, apply for a taxpayer ID number for the estate, and open an estate bank account. The executor will need to compile, and file with the court, an inventory and appraisal of all probate property.
If all this sounds overwhelming, remember that it doesn’t all have to be done at once. It does involve a lot of paperwork (and usually, phone calls), but most well-organized and conscientious people can handle it. And the executor can always get help, from family members or from an attorney who understands the process and can serve as a guide.
Most probate cases in California are handled under the state’s Independent Administration of Estates Act, which lets the executor take care of most matters without having to get permission from the probate court. ( and following.) The executor can usually sell estate property, pay taxes, and approve or reject claims from creditors without court supervision. Certain other acts—for example, selling real estate—require court approval. Cal. Probate Code § 7261.
During the probate process, it’s the executor’s job to keep all assets safe. For example, a house must be insured and maintained; heirlooms must be safeguarded from theft or damage. The executor is also responsible for filing tax returns for the deceased person and for the estate.
In California, creditors have four months to come forward with their claims. Many estates don’t receive any formal claims from creditors; instead, the executor simply pays outstanding bills (for expenses of the final illness, for example). If there isn’t enough money to pay all valid claims, however, state law sets out the order in which claims are to be paid from estate assets. California Probate Code § § 9050 and following.
Finally, when all bills and taxes have been paid, the executor asks the court to close the estate. That’s when the executor can distribute all the estate assets to the people who inherit them.
In most states, lawyers charge by the hour or collect a flat fee for probate work. Not so in California. It’s one of only a few states that let lawyers charge a “statutory fee”—an amount that is a percentage of the value of the assets that go through probate. The percentages are set out in state statutes. (Cal. Probate Code § § 10810, 10811.)
Here are the current rates:
In practice, this means that probate lawyers’ fees can be very high in relation to the amount of actual work done. Probate is usually a matter of filing papers; there’s no trial and there may be no court appearances at all. So, let’s say your probate estate contains a $600,000 house you own in your name alone, plus some bank and brokerage accounts and a car. The total value is $900,000. The attorney’s statutory fee would be $21,000—for very little paperwork.
But wait, what if there’s still $200,000 to pay on the mortgage, reducing your equity to $400,000? The attorney’s fee would still be $21,000—it’s based on the gross amount of the probate assets, not what you actually own.
California lawyers don’t have to charge this way—they can bill by the hour or charge a flat fee. But many follow the statutory fee schedule because it's such a good deal for them. And the fees are only for ordinary work—if there’s something “extraordinary,” the lawyer can ask for an even bigger fee.
Unless people are fighting over the estate, probate is largely a matter of paperwork. In California, the paperwork is mostly fill-in-the-blank forms published by the state’s Judicial Council. All those forms are available on the California Judicial Council's website.
Still, having forms and knowing what to do with them are different things. For more than 25 years, the single best source of guidance for conducting a probate court proceeding without a lawyer is How to Probate an Estate in California, by Lisa Fialco (Nolo). It takes executors through the whole process and provides step-by-step instructions for all forms. Even if you do choose to work with a lawyer, this guide also helps you understand the process and possibly take on some of the work.
For more on California estate planning issues, see our section on California Estate Planning.
]]>You can't just go to probate court and challenge any will that comes through its doors. You must have the legal standing to contest the will, which means that you must be an interested party. This usually means at least one of the following:
Example: If you inherited $20,000 under an older will, and $5,000 under the current will submitted for probate, you could challenge the current will.
Example: If you are not a beneficiary named in the will, but you are a child of the deceased and would inherit property under the laws of intestate succession (which apply when there's no will), you could also challenge the will.
But simply have the standing to contest the will isn't going to mean much unless you have a basis for the challenge. The following section outlines the most common grounds for contesting a will.
If you're wondering whether you can contest a will, review the most common reasons for challenging a will below, and consider whether any of these might apply to your situation. The grounds for contesting a will center around:
It's almost never an issue, but the person who made the will must have been:
The maker of the will must have been of "sound mind" when the will was made. This is not a rigorous requirement. Usually, a court faced with resolving a question of mental capacity requires only that people making a will:
In reality, a person must have been pretty far gone before a court will rule a will invalid. Forgetfulness or even the inability to recognize friends doesn't, by itself, establish incapacity. If the will maker understood the above points at the time they were making the will, it will usually be deemed valid.
A will can also be declared invalid if a court determines that it was procured by fraud, forgery, or "undue influence." This usually involves someone who occupies a position of trust—for example, a caregiver or adult child—manipulating a vulnerable person to leave all, or most, of their property to the manipulator.
Learn more about undue influence.
What makes a document a valid will? Every state has rules about what a will must, at a minimum, contain. Most states require that the document:
A will must be dated and signed in the presence of at least two adult witnesses. In most states, the witnesses cannot be people who are named to inherit property under the will. (If a witness inherits, this may void the gift to the witness but not the rest of the will.)
An exception to the witness requirement is a holographic will, which valid in about half the states. Holographic wills are valid even without witnesses, but they must be signed and either entirely or partially written in the handwriting of the person making the will. (Some states, but not all, require that they also be dated.) Because there are no witnesses, holographic wills are more easily challenged than standard wills; the probate court must be satisfied that the document is actually in the deceased person's handwriting and was intended to serve as a will.
To the surprise of some, wills don't have to be notarized to be valid. Some wills, however, include a self-proving affidavit (sworn statement by the witnesses) that the witnesses sign in front of a notary public. The extra step of making a self-proving affidavit isn't necessary, but it saves some time later when the will is submitted to the probate court.
You can challenge a will after it is submitted to probate, but there are deadlines, discussed below. So once you receive notice that someone is beginning the probate process, you'll want to act quickly if you decide to contest the will.
The exact deadlines for challenging a will vary by the state. Typically, you get a few months to challenge the will. If you don't come forward to challenge the will by the deadline, you're likely out of luck.
By way of example, in California, you may have up to 120 days (or around four months) after the will is admitted to probate. (Cal. Prob. Code § 8270.) In Illinois, you have six months after the will is admitted to probate. (755 ILCS 5/8-1.)
It's hard to succeed when you contest a will. And the costs of litigation are always high. Will contests are also associated with high emotional costs, since bitter family disputes are often involved. That said, if you feel you have a strong case and you have a lot to gain, you should certainly explore your options with a probate lawyer.
One word of caution: In about half of the states, courts will enforce no-contest clauses. Some wills contain a clause that says if you challenge the will, you get nothing. And sometimes these clauses hold up in court. So if the will in question contains a no-contest clause, you should proceed with caution and consult a lawyer.
If you're making a will and are interested in preventing it from being challenged by disgruntled family members, you can take the following steps. While nothing is iron-clad, these steps can help strengthen your will against challenges:
To make your own valid will or simple living trust, you can use Nolo's Quicken WillMaker & Trust.
]]>Example: Your aunt leaves you $15,000 in her will. While her estate is in probate, a lender evaluates your aunt’s estate and your potential inheritance and offers you a probate loan of $10,000. You get that money right away, and at the end of probate, the lender receives whatever you would have received.
The probate lender evaluates the estate and how much you stand to inherit. If the lender believes it is likely to make money on an agreement with you, it will offer you an immediate payment of less than your full inheritance in return for the right to receive the full amount when probate ends. (In legalese, this is an assignment of your claim to your inheritance.) So, you will get less than you originally expected, but you will receive that money sooner, regardless of how long or how uncertain a probate may be.
A probate advance is also referred to as an inheritance advance, immediate inheritance funding, inheritance lending, and probate lending. You might also hear the term "probate loan" to refer to this concept. A probate loan can refer to a differently structured type of inheritance lending, in which your inheritance is used as collateral for a loan. But many people also use "probate loan" interchangeably with the type of probate advance discussed in this article, and we do, too.
Probate lending firms may object to the use of the word "loan" because they argue that probate advances are not actually loans, and therefore not subject to the same consumer protection laws. Whether a probate advance is in fact a loan feeds into an ongoing debate about the need to better regulate this industry, which is still relatively new.
Although you may like the idea of getting your inheritance early, there are many reasons to be skeptical and cautious about probate loans. Before you proceed with a probate advance, inform yourself thoroughly of the significant drawbacks.
Probate advances or probate loans may cost a lot, especially in relation to what you gain. For example, if you get a probate loan and the probate turns out to be relatively quick, you may lose a significant portion of your inheritance for the small advantage of getting the money just a few weeks or months earlier. Depending on the length of the probate, the effective interest rate can range from a somewhat reasonable rate to over 100%. (For comparison, most states regulate the loan industry by capping annual interest rates at around 10%.)
The calculation all depends on the amount the lender offers you, the amount you would have actually inherited, and the length of time between when you get your advance and when the lender receives payment after probate is completed. This may be hard to predict, but consulting an estate attorney may help.
You can see how this might work in the following examples.
Example 1: You receive a $10,000 probate advance on a $15,000 inheritance—so you chose to forego $5,000 for the benefit of getting the money early. The probate is unusually long; it takes two years. Paying $5,000 over two years for a loan of $10,000 is equivalent to an interest rate of 25%. This is already much higher than the terms on most (legal) loans.
Example 2: The facts are the same, except that the probate is of average length (6 months). Paying $5,000 over 6 months for a loan of $10,000 is equivalent to an interest rate of 60%—a truly, truly terrible rate.
In a recent study of probate advances in California (currently the only state that requires probate lenders to file their contracts with the probate court), researchers discovered that the effective average APR (annual percentage rate) on the advances was a whopping 127%. California has laws prohibiting regular lenders from exceeding APRs of 10%.
Probate advances also introduce a stranger into the estate’s probate case, and this may disrupt what might otherwise be a relatively conflict-free process among family and friends. In fact, data from legal researchers indicates that probate lending is more likely to create conflict in an estate than any other common source of conflict, including intestacy, holographic (handwritten) wills, or disinheriting family members (David Horton & Andrea Cann Chandrasekher, Probate Lending, 126 Yale L.J. 102, 157-60 (2016)).
As mentioned above, the probate lending industry is relatively new and largely unregulated. As a result, lenders can and do prey upon consumers. This is especially disconcerting because lenders tend to be sophisticated, well-funded businesses that understand probate, while consumers tend to be people of average means with very little understanding of probate or other estate-related issues. This makes it easy for probate lenders to take advantage of consumers.
To date, California is the only state to pass laws that regulate probate loans and advances (Cal. Prob. Code § 11604.5). If you have questions or concerns about the laws related to probate loans in your state, do not hesitate to get help from an attorney.
If you are considering a probate loan, don’t make the decision lightly. Take some time to evaluate whether it is a good option for you.
Despite the downsides, probate loans may still be a reasonable choice for some people. For example:
Remember that other options exist. You could ask a family member for a loan or try to get a personal loan. Some lenders will also provide loans using inheritance as collateral, similar to a mortgage. Lenders who make these types of loans will require monthly payments on the loan. On the other hand, the probate lenders discussed in this article take your place in probate, assuming some risk of not being repaid.
If you think that a probate loan might be right for you, lenders are easy to find. Perform an internet search for “probate lending” or "probate advances" in your state. As discussed above, contact several lenders, compare their offers, and seriously consider getting advice from an attorney who is familiar with probate lending.
Also, probate lenders may contact you. Probate cases, like other court filings, are public records so lending companies can track the inventories, values, and beneficiaries of estates in probate. In some states, especially California, probate lenders will keep an eye on active probate court records and may contact eligible beneficiaries to see if they are interested in probate lending.
Get help from an attorney if you have any concerns about going forward with probate lending.
]]>The reason is that in adding up the value of your estate to see if it is under the dollar limit, many states exclude huge chunks of assets. In some states, a $500,000 estate could qualify for "small estate" procedures.
If you plan ahead and learn about your state's rules (keeping in mind, of course, that they may change before your death), chances are good that you can adjust your affairs so that you will leave a small estate as your state defines it.
Learn about your state's shortcuts for small estates:
Many states simply don't consider the value of certain kinds of valuable property—for example, motor vehicles, real estate, or real estate located in another state. And possibly more important, many states don't count the value of property that won't go through probate. That means your probate-avoidance work pays double dividends after your death. Making sure your bank accounts and real estate won't go through probate, for example, not only saves on those probate costs but might also enable other property to escape probate, too.
EXAMPLE 1: Robert, a California resident, dies owning a car worth $18,000 and a half-interest in these assets, worth almost $400,000:
The limit for "small estates" in California is $184,500, but vehicles, payable-on-death accounts, and property that goes to a surviving spouse aren't counted toward that limit. So only the stocks count toward the $184,500 limit, allowing Robert's estate to qualify for small estate procedures.
EXAMPLE 2: Tina lives in Indiana, which restricts use of its affidavit procedure to estates worth no more than $100,000. That won't help me, thinks Tina. But she's wrong. When it comes to this limit, Indiana, like many other states, counts only assets that would otherwise go through probate.
Here's how Tina's estate breaks down:
The total value is more than $200,000. But because only the bank accounts and miscellaneous items are subject to probate, Tina has a "small estate" under Indiana law. Her inheritors will be able to use the state's affidavit procedure to claim the money, and no probate will be necessary.
When you're trying to figure out whether or not your estate will be small enough to escape probate, some states require you to use the market value of your property; others instruct you to subtract any amounts owed on it. It can make a huge difference, of course.
EXAMPLE: Millie, a childless widow, dies owning personal property—a car, some stocks, bank accounts, and household furnishings—with a total market value of $45,000. Missouri law says that her inheritors can claim the property without probate if the total value, less "liens and encumbrances," is no greater than $40,000. Because Millie still owed $7,000 on her car when she died, that amount (a lien on the car) can be subtracted. That brings the total value of her estate to $38,000—low enough to qualify for the small estate procedure.
When it comes to determining who can use simplified probate, a fair number of states don't specify a dollar amount as an upper limit. Instead, they grant small estate status to estates that will be used up by paying certain high-priority debts: the family allowance mandated by law, reasonable funeral and burial expenses, and medical costs of the last illness. The reasoning is that if there's nothing left for other creditors, there's no need for a probate court proceeding. Obviously, estates of very different size will qualify, depending on the debts of the deceased person.
Your state's definition of a small estate is the final piece in the entire probate-avoidance puzzle. Once you understand it, you'll know how much effort you need to devote to other probate-avoidance methods.
For example, say you discover that your state allows up to $70,000 to be transferred by affidavit, and only property that is subject to probate counts toward that limit. You'll know that as long as your most valuable items avoid probate, your executor will be able to use the small estate procedures for a big pile of miscellaneous assets that you have left through your will.
Educate your executor. Even if your estate qualifies for a simplified probate procedure, it won't do you any good unless your executor knows that the option is available. Too many confused or intimidated executors simply turn everything over to a lawyer, and pay the price.
]]>Instead of going through an entire probate proceeding, which can take many months or even years, you can simply create a small estate affidavit, get it notarized, and present it to the person or institution (such as a bank) holding the asset.
If you're looking for a simple way to get a deceased person's property and you qualify to use a small estate affidavit, you should use it. The process is quick and relatively painless. For example, using a small estate affidavit for a bank account can be as simple as filling out a form and giving it to the bank.
There are restrictions, however, on who can use this method:
The inheritors of the property initiate the process by creating a small estate affidavit. Usually, there is a short waiting period—commonly, 30 or 45 days after the death—before anyone is allowed to collect the property. Still, the timeline for a small estate affidavit is much shorter than for full probate.
To get the property, the inheritors present their affidavits and a copy of the death certificate to the person or institution who has possession of the property. Some institutions may also insist on seeing a copy of the will, if any. That person or institution is allowed, by law, to turn over the property upon receiving the affidavit.
EXAMPLE: In his will, Perry leaves $20,000 to Alice. A month after Perry dies, Alice goes to his bank and fills out the affidavit form she picks up there, swearing that she is entitled to the money and that the estate qualifies for the state's small estate affidavit procedure. The bank, after looking at the affidavit, a copy of Perry's death certificate, and possibly the will, transfers $20,000 from Perry's account to her.
In most states, an affidavit needs to be given only to the entity that is holding the property. But some states now require a copy to be sent to the state taxing agency, in case any state taxes are due. If the deceased person received any public benefits, another copy may need to go to the Health or Welfare Department; if there's money left in the estate, the government will want to be reimbursed for the aid it provided.
Banks, other financial institutions, and state motor vehicles agencies, which deal with this sort of transfer all the time, may have their own affidavit forms for people to fill out. Many states or counties also offer forms on their websites. Otherwise, the inheritors may have to put together their own, making sure it covers all the conditions the state statute requires.
The affidavit may need to be notarized—that is, signed in front of a notary public—or it may be enough for it to include a statement to the effect that it is being signed "under penalty of perjury." Check the form for your state, county, or bank.
If you don't know whether you are entitled to property, if other people are challenging your right to the property, or if you have other questions about your inheritance, it's a good idea to consult with a probate lawyer. However, small estate affidavits are meant to offer a simple alternative to probate, and many people are able to use them to claim property quickly and easily, and without having to involve a probate lawyer.
AFFIDAVIT FOR COLLECTION OF PERSONAL PROPERTY
Minnesota Statutes § 524.3-1201
Estate of: ____________________________________, Decedent.
STATE OF MINNESOTA
COUNTY OF ______________
I state that:
Because the small estate affidavit is not filed with probate court, there are no filing fees. The costs associated with a small estate affidavit are minimal. You will likely have to pay a notary to get your affidavit notarized, which usually costs around $15-20.
Most banks, brokers, and other entities your inheritors will likely deal with are quite familiar with the affidavit process. But if one refuses to cooperate, just showing an unhelpful clerk a copy of the statute (readily available online or at a public law library) can melt away the opposition. If that doesn't get results, chances are a phone call or letter from a local lawyer will. And, as a last resort, the inheritor can go to court—small claims court, if possible—and demand that the assets be turned over.
Help for California readers. For more details on using small estate procedures in California, see How to Probate an Estate in California, by Lisa Fialco (Nolo).
]]>What exactly is a joint tenancy with right of survivorship (often shortened simply to "joint tenancy")? It's a co-ownership method that comes with the right to take a deceased co-owner's share of the property. If you co-own a piece of property with someone as joint tenants with the right of survivorship, when your co-owner dies, you automatically own their half of the property, and vice versa. (Contrast joint tenancy with a tenancy in common.)
While many use "joint tenancy" interchangeably with "joint tenancy with right of survivorship," and we do so as well in this article, be aware that a few states (such as Texas) have different norms. In situations where you want to be absolutely clear, be sure to include "with right of survivorship."
In the great majority of states, if you and your co-owners own property as "joint tenants with the right of survivorship" or put the abbreviation "JT WROS" after your names on the title document, you not only co-own the property, but you own it in a way that automatically determines who will own it when one of you dies.
A car salesman or bank staffer may assure you that other words are enough. For example, connecting the names of the owners with the word "or," not "and," does create a joint tenancy, in some circumstances, in some states. But it's always better to unambiguously spell out what you want: joint tenancy with right of survivorship.
When Ken and his wife, Janelle, buy a house, they want to take title in joint tenancy. When the deed that transfers the house to them is prepared, all they need to do is tell the title company to identify them on the deed in this way:
Kenneth J. Hartman and Janelle M. Grubcek, as joint tenants with right of survivorship.
There should be no extra cost or paperwork.
Joint tenancy—or a form of ownership that achieves the same probate-avoiding result—is available in all states, although a few impose restrictions, such as the ones summarized below. In addition, one rule applies in every state except Colorado, Connecticut, North Carolina, Ohio, and Vermont: All joint tenants must own equal shares of the property. If you want a different arrangement, such as 60%-40% ownership, joint tenancy is not for you.
Alaska: Joint tenancy is not allowed for real estate, but married spouses may own as tenants by the entirety.
Oregon: A transfer to married spouses creates tenancy by the entirety unless the document clearly states otherwise.
Tennessee: A transfer to husband and wife creates tenancy by the entirety, not joint tenancy.
Wisconsin: Joint tenancy is not available between spouses, but survivorship marital property is.
Learn more about tenancy by the entirety, which has many similarities to joint tenancy, but is available only to married couples.
Especially when it comes to real estate, all law is local, so be sure you know your state’s rules on what language is required to create a joint tenancy with the right of survivorship. While "as joint tenants with right of survivorship" works in many situations, the specific laws of your state might vary slightly. Joint tenancy deeds can look a little different, depending on your state. If you’re not sure, talk to a local real estate lawyer. Here are just a few special state rules.
Michigan: Michigan has two forms of joint tenancy. A traditional joint tenancy is formed when property is transferred to two or more persons using the language "as joint tenants and not as tenants in common." Any owner may terminate the joint tenancy unilaterally (without the consent of the other owner).
If, however, property is transferred to the new owners using the language "as joint tenants with right of survivorship" or to the new owners "and the survivor of them," the result is different. No owner can destroy this joint tenancy unilaterally. Even if you transfer your interest to someone else, that person takes it subject to the rights of your original co-owner. So if you were to die before your original co-owner, that co-owner would automatically own the whole property.
EXAMPLE: Alice and Ben own land in Michigan as "joint tenants with full right of survivorship." Alice sells her interest to Catherine and dies a few years later, while Ben is still alive. Ben now owns the whole property; Catherine owns nothing.
Oregon: Oregon doesn’t use the term “joint tenancy”; instead, you create a survivorship estate. The result is the same as with a joint tenancy: when one owner dies, the surviving owner owns the whole property. But technically, creating a survivorship estate creates what the lawyers call “a tenancy in common in the life estate with cross-contingent remainders in the fee simple.” (That clears it up, doesn’t it?)
South Carolina: To hold real estate in joint tenancy, the deed should use the words "as joint tenants with rights of survivorship, and not as tenants in common," just to make it crystal clear. (S.C. Code Ann. § 27-7-40.)
Texas: If you want to set up a joint tenancy in Texas, you and the other joint tenants might have to sign a written agreement. For example, if you want to create a joint tenancy bank account, so that the survivor will get all the funds, specifying your arrangement on the bank's signature card may not be enough. Fortunately, a bank or real estate office should be able to give you a fill-in-the-blanks form.
Take this requirement seriously. A dispute over such an account ended up in the Texas Supreme Court. Two sisters had set up an account together, using a signature card that allowed the survivor to withdraw the funds. But when one sister died, and the other withdrew the funds, the estate of the deceased sister sued—and won the funds—because the signature card’s language didn’t satisfy the requirements of the Texas statute. (Stauffer v. Henderson, 801 S.W.2d 858 (Tex. 1991).) More recently, the Texas Supreme Court ruled that a married couple who owned investment accounts labeled "JT TEN" did have survivorship rights, even though they hadn't signed anything stating whether or not the account had a survivorship feature. Holmes v. Beatty, 290 S.W.3d 852 (Tex. 2009). But it's still better to be explicit about your intentions.
Joint tenancy and the different ways of co-owning property can be complicated. If you're dealing with the co-owned property of a loved one who died, and you're not sure how they co-owned it or what the implications are, find a probate attorney to help.
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