What Is Probate?
Probate is not a word we use in common speech, therefore to most people “probate court” seems like a mystery. The term comes from the Latin (as does most legal jargon) meaning to prove, test, or examine. So “probate court” is where the legal machine of government “proves” the legitimacy of a will and ensures the proper distribution of assets.
Probate court is something of a machine because it has many moving parts that must all function properly in order for a person to receive the desired result. In other words, there are many documents that need to be filed, answers that need to be provided, follow-ups that need to be performed, and closing steps that must be taken. If any of these procedures are missed, it will slow down the entire process, add frustration, delay closing, and possibly cause the loss of money.
While the probate documents and steps are not terribly difficult in and of themselves (as long as there are no disputes), those who are not familiar with legal processes can become easily overwhelmed. And if anyone disputes the settlement along the way, you will need strong legal counsel to help you settle the dispute fairly. This is why we at the Law Offices of Blitshtein and Weiss, P.C. encourage administrators of a will to find an expert in probate early in the process.
First steps in settling an estate
Before you even go to probate court, you will need to compile a significant amount of documentation. If there is no will, the first step is for the court to assign a personal representative, known as the administrator. If a will exists, the personal representative is called an executor. Most courts now have blank documents on their websites to help with the process.
To start the process, the executor or legal representative submits the death certificate along with appropriate documentation to the court. The court must then validate the will. If for some reason the will cannot be validated, the court will rule that the person died “intestate,” that is, without a will, and the court will determine what happens to the estate, rather than the deceased's wishes being followed. A probate lawyer can help walk a family through the steps of authenticating a will, which may include taking sworn affidavits of witnesses and other legal steps.
Once the court validates the will and approves the executor, the court will provide a “Letters Testamentary” naming the executor, which allows the person access to all assets and debts so that the detailed work of closing the estate can begin. If someone disputes the court's decision regarding the executor, it is beneficial to have an experienced court attorney already on your side to help settle the matter quickly.
The next step is to pay off all debts and taxes, in some cases by selling assets, and distribute the remaining assets and property to surviving beneficiaries according to the wishes of the deceased. This is much easier said than done, and having an expert to turn to for questions can make the process much simpler.
Pennsylvania requires the estate to “advertise” the estate in general circulation newspapers and a legal newspaper for three consecutive weeks, giving debtors a year to file claims against the estate.
What does and doesn't go to probate
While every estate is different, most estates will have some items that need to go through probate, unless the estate holder before death worked with an estate planner to arrange the estate so that it can bypass probate.
Assets that do not need to go through probate include:
- Items held in trust
- Items named as Payable on Death or Transfer on Death
- Jointly held property
- Items with a named beneficiary
Assets or situations that require probate include:
- Lack of will or a will that is not properly witnessed
- Inheritances in which the beneficiary dies before the giver
- Non-titled property, i.e., general household and personal items that do not have titles that are not specifically assigned to an inheritor
- Some joint investment properties
- Property titled solely in the name of the deceased, including bank accounts
Simple probate – yes or no?
In Pennsylvania, small estates may be able to bypass probate court. This would be an estate that contains no more than $50,000 of assets, excluding all real estate, jointly held assets, assets that bypass probate (as listed above), and funeral expenses. If after all these exclusions less than $50,000 remains, you may be able to avoid probate.
The executor must send a letter to the probate court in the area in which the deceased person lived, requesting the simplified probate procedure. If granted, an executor would be able to skip many of the steps of a regular probate process.
If you have been named an executor, you and/or the person whose estate you will handle should visit with us to see how we can help you avoid probate court. If your loved one has already died and left you as the executor, please give us a call right away at our Southampton office, (215) 364-4900, for a free consultation.