Probate Court

What Is Probate Court?

Probate court is a segment of the judicial system that primarily handles such matters as wills, estates, conservatorships, and guardianships, as well as the commitment of mentally ill persons to institutions designed to help them. When wills are contested, for example, the probate court is responsible for ruling on the authenticity of the document and the mental stability of the person who signed it. The court also decides who receives which portion of the decedent's assets, based on the instructions in the will or — barring that — other laws in place.

Understanding Probate Court

The role of the probate court is to make sure that a deceased person's debts are paid and assets are allocated to the correct beneficiaries. The term probate is used to describe the legal process that manages the assets and liabilities left behind by a recently deceased person. Probate is multifaceted in that it covers the overall legal process of dealing with a deceased person's assets and debt, the court that manages the process, and the actual distribution of assets itself.

Individual states have specialized probate courts. Some states do not call it a probate court but instead refer to it as a surrogate’s court, orphan’s court, or chancery court.

The Process of Probate Court

The process of probate is initiated when a person files a petition for probate with the state's probate court system. This petition is normally filed by a family member of the deceased or by a designator of the deceased's will. The probate court then issues an order that appoints a person to be the executor or administrator of the deceased's estate. The executor or administrator is responsible for allocating the deceased's estate to the proper beneficiaries, among other administrative duties. A probate lawyer is often hired to help deal with the intricacies of probate.

Probate Court With a Will

When a person dies, the probate court determines if that person left behind a will. If so, the court probates the will, meaning that it looks into the validity of the will itself. If the will is valid, the probate court appoints an executor to allocate the deceased person's assets to the proper beneficiaries. If the will is not valid or if it's contested, the court reviews and decides the matter.

Probate Court Without a Will

When a person dies with no will, the probate court allocates the person's assets to their next of kin. This is known as the law of intestate succession, and it outlines the allocation mix between surviving spouses, grandchildren, siblings, parents, aunts, and uncles.

Without or without a will, going to probate court is likely required to settle a decedent's affairs. However, there are ways to simplify the probate process prior to death, including creating a living trust, naming beneficiaries clearly on all investment, bank, and retirement accounts, and establishing joint ownership for certain assets.

Example of Probate Court

Many local courts offer complete instructions on how to begin the probate process. For example, the New York State Unified Court System allows individuals to search by their county and type of court in order to begin the probate process.

Probate Court FAQs

What Happens at a Probate Court Hearing?

At a probate court hearing, the judge will list the responsibilities of the executor of the will, including contacting any beneficiaries, creditors, appraising their assets, and paying any outstanding creditors and taxes. Usually, after the second court hearing, the judge will ensure all these items have been done and make sure to close out the estate so that the transfers of money and estate can begin.

Do You Have to Go to Probate Court When Someone Dies?

Each state has specific probate laws to determine what's required. Unless someone has no assets or descendants when they die, probate is usually still required in order to settle the deceased's remaining affairs, including debts, assets, and paying their final bills and taxes.

How Do You Avoid Probate Court?

While it can be tricky to avoid probate court completely, some ways to avoid probate include creating a living trust, naming beneficiaries clearly on all investment, bank, and retirement accounts, and establishing joint ownership for certain assets.

How Long Does Probate Take?

The length of time varies depending on the deceased person's assets, the complication of their will, and other factors. While probate can go from a few weeks to a few years, the average length of time it takes to complete probate is about nine months.

How Do You File an Objection in Probate Court?

The probate court website usually has forms to fill out in order to file an objection, whether an objection to tampering of the will, forgery, or something else. These forms must be submitted at the beginning of the process.

The Bottom Line

After someone passes away, the grief of their loss can be a challenging time for remaining family, friends, and loved ones. Unfortunately, the probate process can add an additional financial and administrative burden in figuring out what to do with the individuals' assets and property. With or without a will, the probate process is essential to understand in ensuring that all affairs are in order.